What’s an HR Manager to do with the “excessively absent” employee; and what about the law?

Of all the HR management tasks, perhaps the most complicated issue in the workplace is absenteeism, especially the unavoidable — and difficult-to-plan and manage — medical leave.

While many absentee team-members may have challenging scenarios and legitimate reasons for absence, this does put a significant burden on the remaining workers to increase their productivity; or, alternately, critical deadlines can be missed, with, often, high costs or loss-of-business.

There certainly are legitimate reasons for the “out of office” notice on your team-members voicemail, but there are other issues besides “accommodation” in play. For example (pun intended), “setting an example” or perception of fairness to others. Of course, there’s the productivity loss, postponed meetings and deadlines and inconvenience to others on the team. There’s the morale issue. Do you pay or not pay? Absenteeism is one of the significant problems unresolved in most workplaces — especially today, where retaining top talent is the main priority.

One way to handle “bad news” lines-in-the-sand is to use an external HR Manager. Bad news by the outside “thug” is often accepted. Bad news from the internal team becomes a “bad blood” situation. No matter how accommodating you intend to be, you need also to consider the law.

• Do you need advice from an outside HR expert? Contact the HR Managers at Pivotal Solutions>> For actual legal issues, always consult legal experts.

Case law: 79% absenteeism

What happens if you have a long-term employee who — through no fault of her own — is absent 79% of the time. Months off the job. She has a degenerative lumbar condition. Finally, with a medical certificate authorizing her “progressive return to work,” she returned to full-time employment. (This was back in 2015).

This case — Syndicat de la fonction publique et parapublique du Québec (SFPQ-Fonctionnaires) c. Gouvernement du Québec (Ministère du Travail, de l’Emploi et de la Solidarité sociale) — weighs the legitimate needs of the employee, with the workplace. In this case, the employer even went so far as to ask for additional medical assessments, which confirmed she could return — but qualifying that her “short, medium and long-term prognosis” wasn’t ideal, and there was a good chance of relapse.

Relying on expert “findings,” the employer terminated her employment (“administrative reasons”). The union fought the termination and showed evidence of medical reports with favourable prognosis.

The case went to arbitration, where it went in favour of the employer based on the employer’s experts. They also found that the employer faced significant costs related to spreading the employee’s workload amongst other team members. In other words, the arbitrator “upheld termination” — but stipulated she was due her full salary from the time she was pronounced fit for full-time work by the employer’s experts.

[There is a lot more to this case. For more information and detail, see Note 2 below.]

The lesson of caution, management and records

Cases involving sick and disability leave are heart-wrenching. The lesson for employers, in this case, is you must have “expert validation” if you expect to prevail. Of course, this requires a strong HR management team who can document everything carefully. Trying to record after the fact will not be credible in arbitration.

In this case, for example, if the employer’s experts had not written well-documented reports (with MRIs, in this case), the employer would likely not have won in arbitration.

In other words, the lessons here are:

1. Have well-developed HR policies in writing.
2. Document everything.
3. Skilled HR managers are a must in these situations.
4. Make use of external experts to validate your opinions. If you are wrong — you are wrong, let it go. If you are right, you have evidence for arbitration.
5. Assume you will have to go to arbitration.
6. Minimize the risks by outsourcing experts, from your HR management team to your legal advisors — outsourced experts can appear more credible.

What are the rules to avoid trouble?

Again, a professional HR Manager will have the latest information, and you should always refer to the government’s most recent rules — which do not necessarily incorporate precedent-setting arbitration adjustments. Here are some topline guidelines (especially note “verification” which was the big issue in the cited case), by no means complete:

How long leave is permitted?

Eligible employees are entitled to take long-term leave for serious injury or illness for up to 17 weeks in a 52-week period. The leave must be taken in one continuous period unless the employer and employee agree to a different arrangement, or there are different terms set out under collective agreement.

Verification

For an employee to be eligible for the leave, a physician must issue a certificate with evidence to verify that the employee is expected to be incapable of being at work for at least two weeks due to a serious illness or injury.

Who is eligible?

Employees who have worked for the same employer for at least 90 days and have a serious injury or illness that prevents them from being at work for at least two weeks are entitled to the leave.

How much notice is required?

Employees are required to give the employer as much notice as is reasonable and practicable. In some cases, employees know ahead of time that they will need time off work related to a serious injury or illness. In others, the need for time off work will be sudden and unexpected, and it may not be possible to provide any notice.

Can the employer require a “return to work” fitness certification?

The employer may require the employee to provide a medical note to confirm that the employee is fit to return to work.

What if the employer refuses to reinstate the employee?

Employees must be allowed to return to their job, or comparable job, with the same or greater pay and benefits when they return from leave. Employees who have been refused by their employer can file a complaint with Employment Standards within six months after the date the employee should have been reinstated.

Do employees get paid on leave?

No. Employers are not required to pay wages to employees while on leave. For all leaves, the legislation only requires employers to provide the time off and allow employees to return to their job when the leave has ended. Employers can, and often do, give greater benefits than those provided for in the legislation.

However, other federal programs may provide income replacement. Employees should contact the federal government to find out what types of leaves have income replacement.

The only exception under The Employment Standards Code where an employer is required to pay a portion of a leave is under the Domestic Violence Leave.

NOTES
[1] Government labour standards for long term leave>>
[2] Cited case: https://www.employmentlawtoday.com/article/40147-excessive-absenteeism-and-reasonable-accommodation-where-to-draw-the-line/