Canada: Check-In For A Check-Up – An Employer's Duty To Make Inquiries

Excessive absenteeism is one of the most difficult issues facing human resource professionals today. It is also one of the more complex areas of labour and employment law. One of the reasons why excessive absenteeism is so complicated is because it often raises human rights implications.

The perfect example is found in Coast Mountain Bus Company and CAW, Local 111 A-227/04 (Joan Gordon) — an old case with facts still faced by today's employer nearly two decades later. The employer hired the employee as a bus driver in 1996 and terminated the employee in 2003 for excessive non-culpable absenteeism. The bus driver had missed 842 days of work. The absenteeism was caused by a variety of ongoing problems: the flu; strained neck and shoulder muscles; depression; anxiety; insomnia; lack of concentration and volatile temper; emotional upset over a bomb threat on a bus; gastroenteritis; headache; fever; anxiety disorder; lower back pain; a gallbladder condition; and osteoarthritis. In arguing that the arbitrator should uphold the termination of the driver's employment, the employer relied on the driver's past attendance record and argued that his record was not likely to improve. The arbitrator, however, ruled against the employer and reinstated the driver finding that the driver's past attendance record was not sufficient to prove that the driver was unable to work in the future and noting that the employer ought to have obtained better medical information and presented medical evidence with respect to the prognosis for the driver's future attendance at work. Although the employer argued that the driver had not requested any workplace accommodations, the arbitrator found that it was up to the employer to initiate the process and make the medical inquiries of the employee.

An employer's duty to make inquiries of an employee when faced with red flags signaling that workplace accommodations may be required is well-established now. Although employers sometimes may feel reluctant to make medical inquiries of their workforce for privacy reasons, the duty to accommodate in fact compels that those medical inquiries be made of an employee when faced with such red flags. Red flags may include things like:

  • Excessive absenteeism
  • Sudden, clear changes in mood
  • Tearfulness and expressions of hopelessness
  • Withdrawing socially
  • Change in physical appearance
  • Symptoms of exhaustion
  • Unexplained deterioration in the quality of work
  • Rumours that the employee has been hospitalized or is in counseling

When faced with red flags, best practice for employers is to check-in with the employee for a check-up with their doctor to confirm whether any workplace accommodations are required for the employee and, if so, to what extent. Appropriate medical inquiries to make include:

  • Whether the employee has a medical condition affecting their job performance including their ability to perform their regular duties and work their regular schedule;
  • Whether any of the performance concerns you are seeing are caused or contributed to by a medical condition and, if so, to what extent;
  • What workplace accommodations may be required for the employee and for how long;
  • Whether the employee has been prescribed treatment for the condition and, if so, whether the employee is following the treatment as prescribed and whether the treatment may affect their effective or safe performance of their work;
  • What the employee's prognosis is for returning to work in their position or an accommodated position, their expected return to work date, and any gradual return to work recommendations; and
  • Whether a follow-up medical appointment is required and, if so, what frequency.

Whether all or some of these inquiries are made, employers still need to recognize that dealing with chronic absenteeism may be a long term project and not all check-ins will necessarily lead to check-outs. This is why it is important to establish a long term game plan for managing employee absenteeism in a way that is constructive, rehabilitative and flexible.


About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

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For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.

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