Tips and advice for dealing with absenteeism due to illness.

Today more than ever, absenteeism is giving employers headaches, and absence due to illness tops the list of reasons for employee absenteeism.

While every employer wants to curb absenteeism due to illness, there are a number of issues involved. For example, when can you insist on a seeing a medical certificate? Can you compel an employee to undergo a medical examination? How far do you have to go to accommodate employees who are chronically absent due to illness? The answers to those questions can be found below.

Medical certificates

It is generally acknowledged that an employer can insist on receiving a medical certificate after an absence of more than three days. For shorter periods, an employer can generally demand a medical certificate if it suspects that the employee is abusing his or her right to sick-leave. This will be the case, for example, where an employee is frequently absent the day before or after a holiday, or where an employee who has asked for and been denied a day off doesn’t come to work that day on the pretext of being ill, or where the employer has other reasonable grounds for suspecting that an employee is in bad faith. Employers can also demand a medical certificate if the information provided by the employee is vague or incoherent, or if the employee has a history of abusing the right to take sick-days.

The medical certificate should contain certain basic information, including the name and contact information of the healthcare professional who issued the certificate, the date of the employee’s appointment with the professional and the anticipated duration of the employee’s absence. In some cases the employer can also insist that the certificate mention the diagnosis, such as where the absence is long-term or where the employer wants to have the employee examined by a medical expert retained by it.

Expert medical emaninations

In some cases, the employer may require an employee to be examined by a physician of its choosing. This will be the case, for example, where the employee submits a dubious medical certificate, where the employer has doubts about the reasonableness of the length of his or her absence, when the employee returns to work after disability leave, or where the employer wants to verify the extent to which the employee is disabled. The fact of the employee receiving disability benefits from an insurer while on sick-leave does not in and of itself prevent the employer from insisting on a medical examination. Employers and insurers play separate roles in managing employee disability and have distinct rights, obligations and responsibilities.

Disciplinary or administrative management of absenteeism?

The employer cannot adopt just one approach for all cases of absenteeism. To the extent that the employee habitually arrives at work late or leaves early, is absent without justification or under false pretences, or fails to provide requested supporting documentation, the employer should institute a disciplinary process involving a system of progressive discipline. Where, on the other hand, the employee’s absences are justified on medical grounds, the employer should take an administrative approach, in keeping with its obligation to accommodate.

Obligation to accomodate

As an employer, you are entitled to expect that every employee will fulfill the obligation to perform his or her normal workload on a regular basis. However, an employer cannot discriminate against an employee on account of the latter’s illness (or “handicap”), except in cases of undue hardship. Undue hardship will be found to exist where the employer can show that despite its accommodations, the employee will be unable to return to work in the reasonably foreseeable future.

Employers are bound to take all possible measures and to be creative in their attempts to accommodate an employee before deciding to terminate his or her employment. Various such measures are available, including a gradual return to work, rearranging the work schedule, lightening the employee’s workload, etc. In the case of an employee addicted to drugs or alcohol, the employer can arrange for the employee to undergo rehabilitation treatment.

The extent of the obligation to accommodate an employee varies according to the size of the employer’s business and the extent of its means, and may be subject to certain parameters under any collective agreement in place. However, the employer is not bound to fundamentally alter the employee’s conditions of employment or create a new position as an accommodating measure. Accordingly, where the employer can establish through convincing medical evidence that the employee will be incapable of returning to work in the reasonably foreseeable future, that incapacity in and of itself will constitute reasonable grounds for dismissal.

A fortiori, an employer may dismiss an employee where the medical evidence shows that he or she is totally and permanently disabled.

As each case is sui generis, there is no blanket remedy for all instances of absenteeism, but several solutions are available to employers. Moreover, a clear and well-publicized policy is always a good way to avoid the treatment of individual cases being misinterpreted or appearing to be discriminatory.