Sickness and Disability Leave: Accommodating employees, preventing abuse, facilitating return to work

In recent months, issues related to leaves and return to work have gained new prominence as a result of the COVID-19 pandemic. Employers and unions have routinely been called upon to handle requests for sick leave or disability leave and to facilitate return to work while respecting employee privacy, preventing abuse, and fulfilling accommodation obligations. In this session, experienced lawyers will provide practical advice to workplace parties on their rights and responsibilities with respect to sick leave, disability leave, and return to work, with a focus on the following topics:

• What medical information can employers legally require from employees to justify the use of one or two sick days? Are employees entitled to use a sick day as a “mental health day” or to take care of a sick child? If so, can an employer require medical evidence to support the need for such an absence?
• How does the information required to justify longer absences or entitlement to disability benefits differ from the information required to justify one or two sick days? How have requirements for medical information changed due to the COVID-19 pandemic?
• What must employers do to protect employee privacy in the context of sick leave?
• How can employers prevent abuse of sick leave without violating employees’ privacy rights? When, if ever, is it appropriate for an employer to conduct covert surveillance of an employee suspected of sick leave fraud?
• In what circumstances will arbitrators uphold the discharge of an employee for abusing sick leave?
• What is the potential liability faced by an employer who unjustly accuses an employee of sick leave or disability benefit fraud?
• What are the obligations of the employer, the union, and the insurer (if applicable) to an employee who has been absent from work due to illness or disability for an extended period?
• How should employers and unions communicate with employees on sick leave or disability leave? What are the differences between appropriate contact and harassment?
• What medical information is needed to facilitate a return to work? What are the key elements of a return-to-work plan, and what provisions should be made for preventing relapse and reviewing accommodation?