by Michael V. Coyle, JD*

“How long do I have to keep a job open for someone who is off sick?” is a question I have been asked by any number of employers over the years.

The most important thing to understand in answering that question is that it is not strictly an employment law question. It is actually a Human Rights question. The Duty to Accommodate is a doctrine devised by the courts to enforce human rights laws that prohibit discrimination. The duty to accommodate applies to all prohibited grounds of discrimination (age, gender, race, religion, disability, health, political beliefs, family status, etc.), not just sickness or injury; and it applies to all who provide services or accommodations (landlords, for example), not just to employers.

That is important to know because Human Rights laws are “quasi-constitutional” in nature and they take precedence over all other laws except the Constitution of Canada itself.

So, while employment law might say that an employee who is absent from work due to illness has breached their employment contract by failing to come to work, Human Rights law says “not so fast”.

The duty to accommodate is by no means a “new” development in the law. It has been the law in Canada for over a dozen years and it is one that continues to evolve.

Essentially, an employer must accommodate the employee by putting them on a leave of absence without pay, while holding their job for them and keeping it there “to the point of undue hardship” for the employer. You will note that is to the point of “undue hardship”, not simply “to the point of hardship”. The law assumes that there will always be some hardship involved for an employer in every accommodation.

So, what might be considered “undue” hardship? The law has not established a time limit or time formula for determining when a medical absence becomes an undue hardship. Each case has to be looked at on its own. Generally, an extended absence might create an undue hardship for the employer when, for example:

• The employer is unable to attract or retain persons qualified for the position because it is not being offered permanently.
• The cost of paying an employee’s benefits while that person is not working becomes unreasonable.
• The employee’s skills or qualifications become outdated.
• A new business focus or approach no longer requires the employee’s qualifications or skills.

That is not to say that, at some point, a prolonged absence will not by itself become an undue hardship and violate the employment contract. It is just to say that it can be difficult to show exactly that the point has been reached that the employer can legally let the absent employee go.

The next question (more of a statement, really) that employers typically ask is: “Well, if I have to accommodate this person then I have the right to know the precise details of their medical condition, right?”

The answer is “no”. An employer is only entitled to receive the information necessary to enable it to accommodate the employee. This will include medical verification that the employee has a legitimate illness, and a professional estimate of how long the employee will need to be accommodated.

It is important to understand that just because a person had a right to be accommodated that does not mean that their privacy rights go out the window.

Although they rarely admit it, some employers (and, sadly, even some lawyers) seem to think that they can thwart the employee’s human rights and, in effect, make them “go away”, by demanding  embarrassing or unnecessary medical information. That can be a very dangerous tack for an employer to take.

If the doctor is unable to say how long the employee will likely be off work that may, or may not, end the employer’s duty to accommodate. If the doctor is simply saying that the prognosis is uncertain at present or perhaps that further tests are needed or that a specialist is being consulted, that would probably not end the employer’s duty. If, on the other hand, the doctor is saying firmly that the person will be off work “for the foreseeable future” and there is no “return to work date” available, then that may well end the duty.

On the other hand, the employee is required to co-operate with the employer and obtain medical verification that can reasonably assist the employer in its duty to accommodate. An illegible or cryptic note scrawled on a prescription pad saying something like “Joe is off work until further notice” is not likely to be sufficient. Frankly, the problem here is often with the doctor, not with the employee. Some doctors still believe that a handwritten “doctor’s note” is all that anyone needs and some doctors may  take offence at any suggestion that their authority to “put someone off work” is apparently being questioned by anyone.

A lot depends on how the employer approaches the question of medical verification with the employee. If they do so with obvious suspicion and mistrust – as though they are trying to drive a wedge between the employee and their doctor – the  results and the quality of information they receive are often predictable. However, if they take a more open-minded approach from the perspective of an employer who is genuinely trying to accommodate their employee, the results in my experience are much more satisfactory for all concerned.

In cases where the employee is able to return to work on limited or modified duties, the employer is entitled to have professional verification that the employee has a legitimate functional limitation, a description of the limitation to help the employer accommodate that limitation.

I have only discussed here the most common situations where an employee has been “put off work” because of an illness, be it physical or mental. That would, of course, include what are often called “stress leave” situations. More complex situations where employees have on-going disabilities that need to be accommodated in the workplace, or that might involve workplace safety concerns, or ones that involve determinations of “bona fide occupational qualifications”, will require different assessments.

So, too, will cases where the discrimination that must be prevented by accommodation is based on grounds other than illness or disability, such as those based on gender, religion or family status.

I cannot emphasize enough how important it is for employers to get competent advice before committing to a course of action in these cases. This is a highly specialized area of law. The fact is that early, knowledgeable advice can actually save you a lot of money in these cases. There is very little that a lawyer can do for you once a Human Rights complaint is filed except provide expensive representation at a human rights hearing or in a lawsuit that probably could have been avoided with experienced legal advice in the first place. If in doubt, you should seek a second opinion.

For legal advice about your personal or business situation, please contact me.

*Michael Coyle is an experienced employment, labour and human rights lawyer based in Kentville, Nova Scotia. Information and opinion expressed in this article is meant for general interest only and is not a substitute for legal advice about your own situation. Michael can be reached by email at [email protected]  For more information and tips, visit his website at www.michaelcoyle.ca

 ©Michael V. Coyle, 2012