Do you know what you can ask for when an employee is absent from work?
Can you ask an employee about why they are absent from work? The laws regarding what is appropriate for an employer to ask of an employee when it comes to time off work – for example, according to the Ontario Ministry of Labour, an employer cannot punish or fire an employee for taking time off work when it comes to personal emergency days – up to 10 personal emergency days a year (Ontario Ministry of Labour, 2018). However, when it comes to being absent for a disability leave involving a wage protection program, (i.e. the employee gets paid a certain percentage of original wage), the privacy policies and procedures can change depending on the workplace and the agreements in place at that workplace.
Legal Decision in BC
There was an arbitration case in British Columbia that occurred last year in June, 2017, regarding a medical information grievance between an employer (Rio Tinto Alcan Inc.) and the union (Unifor, Local). The issue in the case involved an employee who was required to visit the company’s provided Occupational Health Department for medical and health services. The employee was seeking wage loss protection for disability absences from work, but felt that it was an invasion of privacy for the company to require medical information regarding the reasoning for being off work. The company had a collective agreement in place that stated the company reserved the right to have an employee examined by a physician of its choice and that the decision of the company’s Occupational Health Department regarding whether an employee is disabled is final. The agreement also stated that employees must visit a physician within five days of the start of disability and return a completed physician’s report to the Occupational Health Department to be eligible for wage loss protection benefits (Fasken, 2018).
Due to the collective agreement in place and the provided resources from the company, the arbitrator in the case ruled that the company was not out of their rights to request medical documentation for disability leave. It was decided that an employer has a right to ensure that employees are absent from work for legitimate reasons only. In order for an employer to provide an early, safe and successful return to work for injured or ill employees, employers are entitled to sufficient information that will aid in the process (Fasken, 2018).
What this Means
For the future, this is an eye-opening example of why employees should ensure they are clear on the policies outlined in their collective agreements.
Gowan Consulting can assist you with getting the information you need to support a timely and safe return to work after absence. Check out our Occupational Therapy Services. Or learn more through our webinar on Return to Work information.
Fasken. (2018, June 6). Employee-mandated physician visit is not a privacy violation. Retrieved from https://www.lexology.com/library/detail.aspx?g=8bbee084-6028-4b85-8048-17a892d13571&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2018-06-07&utm_term=
Ontario Ministry of Labour. (2018, January). Frequently Asked Questions. Employment Standards. Retrieved from https://www.labour.gov.on.ca/english/es/faqs/general.php