Managing short-term absences: Lessons learned the hard way

27 November 2012

What kind of medical information can an employer require to justify an employee’s short-term absence? Can the employer discipline or terminate the employee for the failure to provide sufficient information? Many employers have asked these questions and faced these challenges. Some have terminated for abandonment of employment or insubordination when employees failed to deliver the information.

Yet despite having the right to seek information, few employers succeed in defending that right when sued for wrongful dismissal. These are some of the lessons learned, the hard way:

1. The Onus to do Everything is on the Employer

Responsibility for any failure of communication falls to the employer. The employer must be able to demonstrate a record of express and persistent requests for information regarding the employee’s status and medical information, and a lack of response by the employee. Without this evidence, a failure by the employee to provide information is more likely to be characterized as a failure by the employer to request and obtain information.

2. Communication Must be Proven

An employer cannot rely upon communication that it cannot prove has been received, or at least delivered to the employee. A court must be satisfied that the employee did (or quite likely did) receive the communication. The benefit of any doubt is likely to be in the employee’s favour. Regular mail or voice messages left on a machine that cannot be confirmed to be the employee’s have been found to be inadequate methods because the employer cannot prove receipt by the employee.

3. Provide All Available Options

The employer must provide all available options to the employee regarding their continued absence or return to work, not just those that are most appealing or beneficial to it. Limiting the options to those conducive to the efficient operation of the employer’s business or consistent with the outcome it hopes to achieve, even if reasonable, can undermine a successful defence. Efforts to be reasonable and accommodating to the employee are more likely to be rewarded than those designed to maximize flexibility and minimize disruption to the employer.

4. Reasonable Policies Consistently and Compassionately Enforced

An employer will not be allowed to take a swift and hard line regarding an employee’s absence from the workplace in the face of ambiguous policies or on the heels of previously lax practices that suggest the requirement to comply is more of an option than a rule. Well defined and consistently enforced policies regarding attendance will aid an employer seeking to defend discipline or termination.

5. Opportunism or Unfairness will be Punished

The employer must remain objective and even-handed in its conduct, even where the behaviour of the employee is otherwise. Mischaracterizing the employee’s actions, manipulating the facts to the employee’s disadvantage or seeking to take advantage of the employee’s circumstances to avoid the employer’s legal obligations is likely to be detected and rejected. Wilful blindness to the facts or conduct designed to achieve a pre-determined objective (usually the end of employment) is likely to result in liability for the employer.

6. Wilful Disobedience

Employers who discipline or terminate an employee who is absent due to a reported health condition will be held to a high standard because of the employee’s circumstances. However, if the employee is perceived to have been wilfully disobedient, the employer is more likely to be found to have taken all appropriate steps to justify the discipline or termination of the employee. The refusal to follow policies and instructions or to respond at all to proven communications will undermine an employee’s claim, even if their health condition justifies their continued absence.

7. Patience

Patience is a virtue, particularly as it relates to a non-unionized employee who is absent due to a stated illness and subjected to discipline or termination as a consequence of their failure to provide sufficient medical documentation to justify their continued absence. Many of the cases that discuss the entitlement of an employer to obtain medical information arise in the context of wrongful dismissal actions originating from the employer’s frustration with the failure of the employee to provide any or sufficient information, or to communicate at all. Even in cases of relatively extreme unreasonableness by the absent employee, in many cases courts have found the employee has not abandoned their employment or behaved in a manner which constituted insubordination justifying termination for cause. Rather, the court has found fault with the employer for any of the reasons outlined above. The employer’s patience in addressing the employee’s absence is likely to be rewarded.

8. To be Treated Fairly, Act Fairly

The burden on the employer to be fair, reasonable and patient, in making inquiries and following up is proportional to the length of service of the employee and the intensity of the court’s sympathy for the employee’s circumstances. Except in the case of the most obvious malingerer or the blatantly disobedient employee, the facts are likely to warrant some measure of sympathy and the employer is strongly encouraged to exercise care and patience in the process it follows. It is wise to go the extra step to communicate and confirm before coming to any conclusions. Any effort by the employer to recharacterize the facts to avoid liability is unlikely to find favour with the court.

Conclusion

An employer seeking medical information to justify the relatively short-term absence of an employee must be persistent and thorough. It cannot become frustrated or distracted, or give up in its effort. It cannot accept incomplete information or come to convenient conclusions based upon it. Most importantly, it cannot rush to initiate discipline or termination. Rather, it must learn from the lessons of others or be doomed to repeat their mistakes and suffer similar consequences.


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.