Tackling Sick Leave and Return to Work: Credibility, self-reporting, and other thorny issues

Reports of employees taking a sick day to watch a baseball game or engage in some other leisure activity are legion. In fact, the improper use of sick leave is often viewed as “a fact of life,” but employers have a legitimate interest in preventing sick leave fraud and abuse. Indeed, unions and employees generally recognize the employer’s interest in ensuring the appropriate use of sick leave, but often disagree with employers on the best means of preventing fraud. In this session, experienced management and union lawyers will lay out the legal principles applicable to preventing sick leave abuse, while a medical expert will explain how health care professionals decide when someone needs time off work and address the issue of malingering.

• Sick leave: What medical information can employers legally require from employees taking one or two “sick days”? In Ontario, how will amendments to the Employment Standards Act prohibiting employers from requiring doctors’ notes from employees taking personal emergency leave affect the information that can be required from employees taking sick days? The Ontario Employment Standards Act will still permit employers to require employees to provide “evidence reasonable in the circumstances” that they are eligible for personal emergency leave, but what is “evidence reasonable in the circumstances” if not a doctor’s note? Is it legitimate for employees to use available sick days as “mental health days,” i.e. days off work to reduce stress and possibly prevent the aggravation of a mental health condition? If so, what evidence, if any, can substantiate the need for such an absence? How does the information required to justify longer absences – i.e. those necessitating the use of several weeks of “sick days” or application for short-term or long-term disability benefits – differ from the information required to justify an occasional sick day or two? Is it legitimate for employees to use available sick days to take care of sick children? What practical steps can managers take to encourage employees to make appropriate use of sick leave? In promoting appropriate use of sick leave, should employers encourage employees to stay home if they are not feeling well instead of coming into work ill? What must employers do to protect employee privacy in the context of sick leave? Can an employer tell co-workers why an employee is not at work?
• Invisible disabilities, stigma, and malingering: How can employers prevent sick leave fraud without violating employees’ privacy and human rights? Is increased skepticism of claims for ailments characterized by “subjective” complaints and symptoms – such as mental disorders, chronic pain, and chronic fatigue – warranted, or does skepticism reflect a discriminatory attitude? Are there “gold-standard” diagnostic tests or evaluations for these disorders that can alleviate concerns regarding the legitimacy of employee claims that they cannot work as a result of one or more of these disorders? Alternatively, are there well-recognized and effective tests that specifically determine whether an employee is malingering? How severe must one of these disorders be before sick leave or disability benefits are justified? Must an employee be completely unable to work? If an employee off work for an “invisible disability” is observed socializing or shopping or doing yard work, is the employee’s activity evidence of sick leave fraud? When, if ever, is it appropriate for an employer to conduct covert surveillance of an employee suspected of sick leave fraud? Will arbitrators invariably uphold the termination of an employee who has abused sick leave? What is the potential liability of an employer who unjustly accuses an employee of sick leave or disability benefit fraud?
• Return to work: 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 for a substantial period? What obligation do any or all of these parties have to contact the employee for updated medical information or to facilitate a return to work? Where is the line between maintaining appropriate contact to receive medical information necessary to assess return to work and accommodation options on the one hand and harassing an employee on the other? Do unions breach their duty of fair representation if they do not maintain communication with members regarding their fitness to work, possible accommodations and return to work?