By Michael Murphy and Melissa Pike

The COVID-19 pandemic has impacted workplaces in many ways, including with regards to how employers manage employee absences due to illness. This issue is especially pressing this time of year, given reports of a surge in RSV, rhinovirus and other respiratory cases, along with ongoing issues associated with COVID-19 and the rise of mental health issues in the workplace generally.

There’s a direct correlation between sickness in the workplace and employee productivity. According to Mercer, “Canadian companies lose an estimated $16.6 billion in productivity per year due to workers calling in sick” due to mental health issues alone. The Canadian Mental Health Commission estimates that number to be as high as $50 billion. And this does not even account for absences caused by other medical issues.

Employers clearly have an interest in taking a proactive stance on employee health, such as by offering employee wellness programs and otherwise ensuring employees have a safe and healthy work environment. Beyond the positive impact to employees that can result from fostering a workplace that values health and wellness, it also makes good business sense. Inevitably, employee absences will occur, and employers would do well to keep the following tips in mind:

  1. Sick Leave – Statutory Entitlements:

Employees are entitled to take a certain minimum number of sick days each year.

In Nova Scotia, the Labour Standards Code provides employees with 3 days unpaid leave each year where the leave is required due to the sickness of a child, parent, or family member, or for medical, dental or other similar appointments during working hours. Interestingly, the relevant provision of the Code does not specifically reference sickness of the employee, but is understood to cover such absences as well.

In New Brunswick, the Employment Standards Act allows employees with 90 days of service to take up to 5 days unpaid leave for sickness. Employees are also immediately entitled to take an additional 3 days “family responsibility” leave. In Newfoundland and Labrador, employees with 30 days of service are entitled to take up to 7 days unpaid leave for sickness or family responsibility, while in Prince Edward Island, employees with 3 months of service are entitled to 3 unpaid sick days per year, which increases to 4 unpaid sick days after 5 years of service.

This can be contrasted with the Canada Labour Code, which governs federally-regulated employers only. The Canada Labour Code was recently amended to provide employees with 30 days of continuous service a basic entitlement to three (3) days paid sick leave per year, with the ability to earn additional days of paid sick leave based on service up to a maximum of ten (10) days total per calendar year. These changes will take effect as of December 31, 2022.

Employers should know that entitlements provided under provincial and federal employment standards legislation are “minimum entitlements.” Employers can agree to provide more than just the minimum statutory entitlement, either by policy, practice, or by contract. Employers should also be mindful of potential “live” human rights considerations that could, depending on the circumstances, support leaves of absences over and above these statutory sick days. These considerations are discussed below.

  1. Requesting Medical Information to Support Absences:

Employers have an expectation that employees will report to work when scheduled. If an employee fails to report to work as scheduled, their employer is entitled to seek an explanation, and may also require additional proof in support of that explanation. This may include seeking a doctor’s note where the employee misses work due to illness or injury.

It is not always reasonable or practicable for employers to request a doctor’s note. Even prior to the Covid-19 Pandemic, Doctors Nova Scotia has long advocated for employers to stop the practice of requiring sick notes for their employees on the basis that these medical notes add an undue burden on the health-care system. In line with these concerns, the Nova Scotia Government did not require doctors’ notes in order to qualify for its Covid-19 paid sick leave program.

In practice, most employers have shifted from requiring sick notes for “one-off” type sick days and have limited requests for medical proof where the employee has missed several consecutive days of work (e.g. 3 or more); where the employee has been routinely absent from the workplace (i.e. they have many non-consecutive days of being absent over a specified period of time); or where the employer otherwise has concerns about the legitimacy of the employee’s explanation for their absence.

In such cases, employees may have an obligation to provide documentation, usually from their family physician, to confirm that they were sick and unable to work on the days in question. Employees who unreasonably refuse to provide medical proof in support of an absence may be subject to disciplinary action. However, employers would do well to put a policy in place regarding sick days and attendance management, so that employees are made aware of these obligations and potential consequences of missing work.

  1. Absenteeism and the Duty to Accommodate:

Under the Nova Scotia Human Rights Act, employers have a duty to accommodate employees with “physical or mental disabilities.” The Act provides a lengthy definition of what constitutes a disability, which includes “restriction or lack of ability to perform an activity,” “physical disability, infirmity, malformation or disfigurement,” and various other characteristics.

If an employee’s absenteeism is related to a “disability” then the employer must attempt to accommodate them to the point of undue hardship. What constitutes an “undue hardship” is highly circumstantial, and depends upon various factors, which may include: nature of the business; nature of the employee’s position and interchangeability of the work force; impact of the accommodation on safety; financial cost of providing the accommodation; and problems of morale of other employees.

When an employee seeks an accommodation based on a disability, or indicates their absenteeism is symptomatic of their disability, employers are entitled to seek reasonable medical information to validate their explanation, and also to find a solution that ensures the employee is able to attend work reliably.

At times it may be necessary to seek detailed information from the employee’s physician, with the employee’s consent. In order to balance the employee’s right to privacy and the employer’s right to collect information, employers must generally only seek the minimal amount of information required in the circumstances.

The Nova Scotia Human Rights Commission has indicated that employers may appropriately request the following information when attempting to find an appropriate accommodation:

  • the nature of any accommodation(s) required, or restrictions upon the employee’s ability to complete their work;
  • the prognosis for full or partial recovery;
  • the employee’s fitness to work;
  • the employee’s fitness to perform specific components of the pre-injury job;
  • the likely duration of any physical or mental restrictions or limitations following the employee’s return to work.

When an accommodation is requested, employees have a duty to cooperate with their employer, which means they must respond appropriately to any reasonable requests for medical information.

The above considerations only apply where the employee has a “disability” as defined in the Act, which does not include normal ailments, such as the common cold or the flu. Employers do not have a statutory “duty to accommodate” employees who miss time due to “normal ailments.” For such ailments, the employer would only be expected to comply with applicable employment standards and any contractual or common law entitlements the employee may have.

  1. Confidentiality/Employee Privacy:

Employees who provide medical information to their employers have a reasonable expectation that the employer will ensure that this information remains confidential. Medical information would include any information (verbal or written) that pertains to the health of an employee, such as symptoms, treatment information, and prognosis for recovery.

Due to the highly sensitive nature of employee medical information, employers who collect such information must ensure that:

  • They only request the minimum amount of information necessary for the work-related purpose (i.e. finding an accommodation; ensuring employee is fit to return to work; confirming basis for an absence; etc.);
  • They obtain employee consent to access the information;
  • They put appropriate safeguards in place to ensure the medical information is adequately protected and maintained, such as by limiting who can access the information and ensuring only appropriate personnel have access; ensuring any information regarding an employee’s medical health status is securely communicated; maintaining medical records separate from other employee files; only using the information for the purpose for which it was collected.
  1. Occupational Health and Safety

Employers have a general duty to protect the health and safety of all employees in the workplace. When an employee has missed work for an extended period of time due to illness or injury, employers should confirm that the employee is fit to return to work before allowing them to rejoin the workplace.

In that case, again, it may be necessary for the employer to seek reasonable medical information to confirm the employee’s fitness to work. This is done both for the protection of the employee, as well as others in the workplace.

In addition, employers should consider whether their sick leave practices for temporary illnesses adequately protect employees in the workplace. For example, employees who report to work with a contagious illness may further spread the illness to other members of the team.

To protect health and safety in the workplace, employers should discourage employees from attending work when ill, either by permitting them to take the time off, or allowing them to perform their duties from home if able to do so.

In the interest of maintaining productivity and employee satisfaction, employers may also wish to consider providing employees with a certain amount of paid sick days, to encourage people to refrain from coming into the workplace when sick.

Dealing with employee absenteeism requires careful consideration of a number of issues as outlined above. Employers should bear these considerations in mind, and may also wish to implement Absenteeism and Attendance Management policies, or review existing policies, to ensure not only that minimum legal requirements are being met, but also to ensure that employees are made aware of the rules governing sick leave in their workplace.

For help managing employee absences contact Michael Murphy or call our Halifax or Fredericton office.