Sick Leave and Return to Work: Accommodating employees, preventing abuse

All workplace parties have an interest in ensuring that sick leave and return to work policies and practices are fair, legally compliant, and responsive to both employee privacy concerns and employer concerns over potential abuse. In this session, experienced counsel will outline the legal rights and responsibilities of employers, unions, and employees with respect to sick leave and return to work transitions, and provide practical tips for ensuring a smooth and efficient process.

• Verifying entitlement, protecting privacy: Can employees be legally required to provide medical documentation of an illness to justify taking one or two “sick days”? Should they be asked to do so? What medical information is an employee required to provide in order to justify a short-term leave of absence and/or entitlement to short-term disability benefits? What types of questions should employers avoid in forms or letters requesting information to justify a short-term absence? What medical information can be requested for longer periods of absence and/or to prove entitlement to long-term disability benefits? In what way, if at all, does the information an employee may be required to provide to establish entitlement to benefits differ from the information an employee may be required to provide to facilitate workplace accommodation of a disability? If an employee has submitted medical documentation from his or her own physician supporting a sick leave or a return to work accommodation, when will the employer be justified in seeking further information? What is the process that should be followed in such cases?
• Meeting accommodation obligations on return to work: What obligations does an employer have to return a disabled employee to work after a lengthy absence? What challenges arise when an employee returns after a prolonged absence? Can the employee insist on returning to their original job even if it has been filled, or must the employee be flexible in accepting a reasonable alternative position? What are the key elements of a return to work transition plan? What type of medical information does an employer need to create a return to work plan? Does an employee’s failure to provide information to the employer relieve the employer of its duty to accommodate? What if the employee repeatedly refuses the employer’s reasonable return to work proposals? In what circumstances, if any, can an employee insist on being transferred to another department or location as a condition of return? Are there any timelines employers must meet in terms of returning an employee to work? How can unions facilitate an employee’s return to work in a timely fashion? At what point, if any, will a lengthy disability-related absence give rise to undue hardship?
• Preventing abuse: Must an employer have a reasonable basis to suspect that an employee may be abusing sick leave or disability benefits before conducting covert surveillance? What test do arbitrators apply in determining whether to admit videotaped surveillance evidence? In what circumstances will arbitrators uphold the discharge of an employee for sick leave abuse or making a fraudulent benefit claim? What remedies have arbitrators awarded to employees who have been unjustly accused of or disciplined for abuse of sick leave or disability benefits?