Sick leave usages are surging across Canada. Are you prepared and in the know on how to handle them?
Author: Laurie Caldi, CHRL, Senior Consultant, TAP Strategy & HR Consulting
Employers have had to become proficient at handling an ever-increasing number of employees absences throughout the pandemic. Sick time is being used now more than ever; not just for COVID-related illness, but colds and flu, and a surge in mental health illnesses. A recent survey from Benefits Canada indicates expanding access to mental-health care should be a top priority for employers across the country. Are you prepared?
While each province/territory has their own mandatory requirements, many employers choose to provide employees with more than the minimum requirements..
Here are 5 areas employers should consider to better prepare for handling sick leaves, in general.
1 - SICK LEAVE POLICIES
While each province/territory has their own mandatory requirements, many employers choose to provide employees with more than the minimum requirements.
Clarify how many days of paid sick (or personal) days are provided to employees annually and whether you will prorate them during the year of hire.
Confirm eligibility rules, usually after 3-month probation (like BC) but some provinces accrue entitlement from day 1 (like Ontario).
Indicate once all paid sick leave days are used within the year, any further absences will be treated as unpaid leave.
Clarify whether unused sick leave carries forward to the next calendar year (which is not mandatory) and whether unused sick leave holds any cash value upon termination of employment (which is not typical but negotiated into some collective agreements).
2 - MEDICAL DOCUMENTATION
In accordance with regional legislation, indicate when documentation from a physician (or practitioner license to provide medical care in Canada) is required – generally after 3-5 consecutive days absent from work.
For extended absences, the medical documentation should provide a prognosis, not a diagnosis. While a diagnosis about the illness/injury is considered private, an employer is entitled to the prognosis, which outlines any functional restrictions/capabilities and the anticipated timelines. i.e., are any modifications or accommodations required and for how long?
Encourage the employee to share their job description with their physician, to provide a clear understanding of the role’s physical and intellectual requirements.
Some employers provide a Functional Abilities Form, to obtain information from the physician, enabling an employer to accommodate an ill or injured employee’s safe return to work when able.
3 - OBLIGATIONS
Duty to Accommodate
Employers have a “duty to accommodate” an employee’s safe return to work, by flexing policies, rules, and requirements to enable employees to participate to their fullest potential. This applies to needs that are related to any of the provincial protected grounds, including disability.
Often the accommodation takes the form of modifying the duties, hours of work or providing reasonable supports, up to the point of undue hardship.
The accommodation should always be guided by the physician’s recommendations, not the employee’s personal request(s).
Employers may request an Independent Medical Exam if they want a second opinion but typically would cover the cost (if any).
If you would like to create an accommodation policy, please contact our office at 613-222-2499 or submit a request through this link.
Employee’s Obligation
Ensure your policy indicates that the employee is responsible to communicate with their employer about their wellbeing and expected return. While they may not be able to control their illness, they can control communication with their employer, to allow for planning and business continuity.
Some policies also indicate consequences for failing to communicate, such as “Employee must provide timely communication as requested to avoid any interruption in their benefit coverage”.
Duty to Inquire
Generally, it is the individual employee’s responsibility to disclose their accommodation needs to their employer.
However, the duty to start a conversation about accommodation may shift to the employer if they know (or ought to know) from changes in an employee’s attendance, behaviour or performance that the employee may need accommodation of some form. This is called the ‘duty to inquire’.
4 - PAYROLL/BENEFITS
Record of Employment (ROE)
An ROE must be issued when an employee has an interruption of earnings of seven consecutive calendar days. For , with code “D” for illness/injury.
Benefit Coverage
Clarify whether benefit coverage continues during incidental and/or extended leaves and details about monthly benefit premium costs. Generally, if employees pay a portion of their benefit premiums, continued coverage should be contingent on their continued payment (often via post-dated cheques).
If benefit coverage was entirely company paid, employers may opt to include a clause that limits the duration of benefit coverage (generally for 1-2 years).
RRSP or Pension plan contributions
If the plan permits, employees on extended sick leave may continue contributions. This is another consideration to be determined ahead of time so contributions can be arranged.
5 - DISABILITY MANAGEMENT
Tracking Employee Touchpoints
It is recommended to keep a chronological log, dating all absences and communication touchpoints between the employee and employer. This is much harder to create many weeks into a sick leave and is helpful if there is any future legal contention.
Consider offloading disability management
Some organizations prefer to remain at arms length for disability management and pay their Benefit provider to provide this service and adjudicate claims on their behalf when needed. While costly, some prefer a third party to intervene and handle the (sometimes) messy, time-intensive process of obtaining required medical information to validate sick leaves and arrange for safe return to work.
Long Term Disability (LTD)
Generally, a short-term leave transitions into a Long-Term Disability leave after 17 weeks. If you provide LTD as a benefit, it is important to send the employee the applicable LTD Benefit forms about 4-6 weeks before this milestone, so the claim can be adjudicated to avoid unnecessary delays in LTD payments.
Termination
Terminating someone on sick leave is highly discouraged as it is fraught with risk of (potential) legal action. Some exceptions apply but seek advice from a certified professional to mitigate risk of discrimination.
Tone
Ensure (frequent) ongoing communication with a tone of concern for the employee’s wellbeing. Being supportive and considerate in a time of need goes a long way to building employee loyalty.
WHAT STEPS DO YOU NEED TO TAKE?
Taking time to craft a clear, comprehensive sick leave policy and protocols up front, can better equip your organization to effectively handle the many scenarios that can occur involving employee sick leaves.
WHERE CAN YOU FIND HELP?
TAP Strategy & HR Consulting can help you create a disability management program, policy, or assist you navigate challenges you may face with employee sick leave and absences.
We help you meet compliance in this and other areas by providing you with high quality, effective, and affordable solutions such as our Essential HR Toolkit and our Policy Handbooks.
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Laurie Caldi is a Senior Consultant with TAP Strategy & HR Consulting, a boutique-style management consulting firm specializing in strategy, HR services and Helping Businesses Succeed.
