Tom Stefanik discusses stress leave as part of the Torkin Manes
LegalPoint Video Series.
Q. One of your employees calls or emails that they
are off today due to "stress". That employee
provides you with no further information. What can you do or
what should you do in the circumstances?
The answer to this question will depend on a number of facts.
Here are some considerations:
Does this employee have a past record or pattern of calling in
sick due to "stress"?
If so, are you suspicious of these absences?
Maybe you find that they often occur on a Monday or a Friday or
just before or after a scheduled vacation.
Are these absences followed shortly after expressions of
displeasure with the employee's performance or after a negative
If the employee has used or exhausted their emergency leaves
under the Employment Standards Act and you don't
already have a policy or practise with respect to requesting
reasonable proof when an employee takes an emergency leave absence,
you should consider creating one.
Are you receiving negative feedback from other employees who
are asked to fill in or take over the absent employee's
responsibilities? If so, you may have a serious organizational
issue to review.
Under your company policies and procedures, is this a paid or
unpaid leave or is it discretionary on the company's part? Do
All of these factors are relevant to consider in determining how
to respond to this situation. Absences such as this, which
happen on very short notice and in which the duration is completely
unknown, are the most difficult to manage from an operational point
of view, whether you're an owner, an HR manager, or a
supervisor. I think you'll agree that this type of absence can
have very serious consequences if it is not managed and handled
properly. Recent case law even suggests that
"stress" leave may be compensable as a workplace injury
in the appropriate circumstances. Alternatively, depending
upon the employee's medical state, the employer may be required
to accommodate the employee if there is a disability as defined
under the Human Rights Code. Over and above any
disability issue, there also is potentially the prohibited ground
of "family status" under the Human Rights Code
under which an employee may claim discrimination if he/she is
disciplined or otherwise treated differently because of this
absence, if the absence involves child care responsibilities.
All of these issues, individually and collectively, can get
extremely complicated and unfortunately, Human Resource Managers,
Supervisors and Owners must make decisions on these issues very
quickly, failing which, valuable information may either not be
obtained or the employer may be deemed to have condoned any
misconduct by the employee.
If any of this sounds familiar, and you're not sure how to
deal with it, now would be a good time to talk to a legal
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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