New Minimum Long-Term Disability Leaves Complicate Absenteeism Management

Traditionally, Canadian employers dealing with absence due to longer term illness or injury had a fair amount of latitude to obtain information about disability and potential ways the employee could return to work, including with accommodations. The only applicable legal obligation was under the Human Rights legislation, requiring that any “disability” (a term broadly interpreted to capture almost any condition, including mental illness) was “reasonably accommodated” to the point of (undefined) “undue hardship”. Despite the fact that allowing an employee to be away while staying employed is by far the most common accommodation, there is still no authoritative case law on how long before an absence becomes an “undue hardship”. However, at least under the duty to accommodate, the employer has the right when reasonable, to require regular more detailed medical reports and explore opportunities for early return to work.

That situation has dramatically changed in most provinces for a defined and fairly long initial period of disability.  In a wave of recent amendments, Employment Standards legislation has intervened to create a minimum sick/disability leave period during which employment must be continued at the end of which reinstatement to the employee’s pre-leave role or a comparable one.

The chart below provides a current summary of rights to Employment Standards protected long-term illness and injury leave in the major provinces shown:

 

In addition to the above, other provinces have similar extended illness and injury leaves. We have summarized those leaves below (we recommend reviewing the applicable legislation for a better understanding of the requirements and rules related to these leaves):

 

The BC Exception

Unlike most other provinces, BC requires five (5) paid sick days each year after completing 90 days of employment for any personal illness or injury, among the most generous in terms of sick pay. However, BC’s ESA only protects employment for the 5 paid days plus 3 additional unpaid days per calendar year (other than for WorkSafe eligible injury/illness leaves). This gap is surprising given employees can take four to six months off to care for family members and up to 18 months combined maternity/parental leave  and what other provinces have done.

Given the consistent pattern of longer protected leaves, including, in BC, a two year protection for employees off on WorkSafe injury leaves, it is realistically just a matter of time before BC adds a longer disability leave.

The Consequences

There are many consequences flowing from these new extended disability leave rights, with a few notable ones being:

1. The leave provisions generally only require a medical practitioner to provide a one-line statement, without details, that the employee is ill/injured and then stating the time off needed. It appears obvious that short original estimates may be extended by a follow up doctor’s note. Arguably, at least during the Employment Standards leave, employees are not required to provide basic details of the claimed disability, only certificates or similar documents depending on the legislation.
2. However, it is our tentative view that as the duty to accommodate process is also engaged during the Employment Standards protected leave, employers should continue to have the right to seek, in appropriate cases, additional or updated medical information, to require in appropriate cases an IME and to discuss possible return to work sooner than stated in the certificate. The fact is that:
   • the majority of disability leaves are for conditions, such as depression, which are not always objectively provable and that vary over time, with some patients’ recovering within a few months;
   • leave rights, whether under Human Rights or Employment Standards, are abused by some employees (e.g. the classic scenario where an employee receives a warning and then takes weeks of “sick leave” as retaliation due only to being upset or to avoid being terminated), justifying requiring more evidence of disability in suspicious circumstances;
   • more importantly, with many non-major catastrophic physical illness or injury, it is reasonable to expect that an employee could return to work earlier than a doctor may initially certify with accommodation and/or because the employee makes a speedier than expected recovery. Indeed, it is common for dedicated employees to return to work earlier than their doctor recommends;

Indeed, the duty to accommodate actually requires employers to explore early return to work, as do Workers Compensation statutes.

1. If we are wrong on the point above, then it would follow that the “case-by-case” contextual analysis under the Human Rights legislation of when the point of undue hardship is reached now can only be started at the end of the Employment Standards protected period. Thus for example:
   • Whereas previously a key employee hired on a 12 month contract to help complete a fixed term project can now in provinces like Alberta and Ontario go off on a disability leave with a serious long term condition in month 8 with a guarantee of staying on protected leave and benefit plans for the last 4 months when previously, the employer could argue that the critical need to replace the employee to complete the project work meant undue hardship was reached after only a few weeks of absence;
   • The high % of employees off with conditions that, in fact, could at some point allow them to return to work either in a different role or with job modifications (e.g. part time) can no longer be required to discuss such possible early return to work and to come back to work until the Employment Standards minimum period has ended. In Ontario, six months is a very long time to enjoy an unchallengeable right to be off work with no details and no obligation to discuss possible return to work with accommodation options.
2. Again, if we are wrong about employers continuing right to require more medical information and to discuss RTW, given that most doctors generally agree to both confirm disability and give the duration of leave requested by the employee, this effective means employees can pretty much give themselves the leave they want up to the maximum in their province. Employers only recourse for suspected abuse of leave is to somehow gather strong evidence the employee is not really ill, a high bar. They are hamstrung in this in that the certificates required under Employment Standards do not have to provide a clue as to what the disability is, which would at least allow an employer to assess whether the condition is compatible with activities such as say sky-diving occurring during a sick leave;

Employment Standards leaves are job-protected leaves. As such, an employer cannot terminate an employee because they intend to or do take a leave and are required to return the employee to the same or a similar position upon their return. In addition, an employee cannot be punished or prejudiced (e.g. denied a promotion) as a result of taking any Employment Standards leave. Indeed, all applicable pay increases granted during an employee’s absence must be given on their return to work.

That being said, generally speaking, as with other leaves, if employers can prove that the termination during or at the end of the leave is totally unrelated to the taking of the leave, the employer can still terminate. The two common scenarios are:

1. The employer discovers just cause during the employee’s leave; or
2. The employer is restructuring to reduce staff or close an operation or department and can show the employee would have been selected for termination even if at work.

Employers should also be aware that these new Employment Standards leaves do not discharge them from the broader duty to accommodate under Human Rights legislation which, in most cases will require employment to continue beyond the Employment Standards period. DO NOT assume that once the employee passes the Employment Standards protected period they can be terminated for “non-performance/attendance. Also, remember that, in several provinces including BC and Ontario, there is separate longer job protection for work related disability leaves, including to a limited extent, mental illness leaves.

Practical Tips for Employers

Here are some tips for all employers in provinces with longer Employment Standards protected disability leaves, including multi-provincial employers:

1. Develop Province-Specific Policies: Create clear, jurisdiction-specific sick leave policies that comply with local leave requirements for disability (and other) Employment Standards mandated leaves.
2. Disability Management: As noted above, in appropriate cases (e.g. depression) after an employee has been off for a few weeks and may be recovered enough to consider some kind of return to work, contact the employee, check in and explore ways they could return to work. But refrain from “hardball” disability management tactics like requiring the employee to undergo an “Independent Medical Examination” by an employer appointed doctor, even in suspicious cases, until the Employment Standards leave period has expired. Arguably, requiring any additional medical information beyond the statutory certificate may no longer be permitted during the Employment Standards protected period.
3. Consider Going Beyond Minimum Standards on Sick Pay: While BC offers paid sick days and Alberta/Ontario only protect unpaid leave, consider whether your organization should provide consistent sick pay and disability benefits across all locations for fairness and ease of administration.
4. Review Sick/Disability Pay/Benefit Levels: Check to make sure you are providing minimum sick pay mandated in provinces like BC or Quebec for short sick leaves. Beyond that, paying additional sick pay or offering short or long term disability benefits is generally optional for non-union employers, with the level of pay similarly at the employer’s discretion. Where such benefits are paid, including accrual and carry forward of “sick pay”, set the pay rate well below regular wages. This both lowers the cost of the benefit and creates an incentive for the employee to return to work sooner. Anywhere from 66% to 75% of base pay is a common sick/disability pay rate and does not impose material hardship on the employee. Arrange for employees to pay all LTD premiums. This not only saves money but ensures those benefits are received tax-free by disabled employees.

Stay tuned to see whether BC adds its own protected disability leave and how our courts, tribunals and Employment Standards agencies integrate these new disability leaves with the existing duty to accommodate.

If you want more information on this topic, you can contact us at:

Geoffrey Howard:           ghoward@howardlaw.ca

604 424-9686

Sebastian Chern:            schern@howardlaw.ca

604 424-9688