Is stress leave connected to a legitimate illness, or just a cover for poor performance?
Workplace stress is a common problem, and it is also incredibly expensive for Canadian businesses as employees seek paid time off and medical benefits to treat their stress. While the employers I speak with are committed to helping their employees who are facing legitimate illness, a growing concern for many bosses is how sick-leave benefits are being unfairly exploited by some poorly performing employees.
Employers often tell the same story. They inform an underperforming employee they want to speak to them about their performance. A meeting is set up, but the next day there is a message on the employer’s machine: the employee won’t be coming into work because they are sick, and a doctor’s note is on its way. When the note arrives, it is short and vague, and states the employee will be off work for the next month due to stress.
The employer’s obvious concern is that the employee just doesn’t want to face the consequences of their poor performance. Unfortunately, the law makes it difficult to determine whether the absence is legitimate.
Deciphering stress leave
An employer has limited ability to question the legitimacy of a note from a qualified medical doctor and can’t discriminate against an employee with a legitimate disability or dismiss a disabled employee or otherwise adversely affect their terms of employment because they are disabled. Indeed, an employer must accommodate a disabled employee by, for example, providing leave so the employee can recover from or manage their disability. An employee is not protected when their stress is simply an aversion to their job, but they are protected if the stress is a symptom of a recognized medical disability.
In order to try to figure out which is the case, an employer is allowed to request some information about a sick-leave request, including what the prognosis for a full recovery is, the length of time needed for a full recovery, whether the employee will be under any medication when he or she returns to work, whether there will be any requirement for a graduated return to work and what impact, if any, the illness will have on the employee’s abilities to return to work and fully perform their duties. In limited circumstances, an employer may also have the right to demand an independent medical examination.
What the law doesn’t permit an employer to do, at least in the initial stages, is ask for the employee’s diagnosis, as this infringes on the employee’s privacy rights. This often leaves employers between a rock and a hard place because if they take disciplinary action and then it is determined that the stress is a symptom of a disability, the employer may face a human-rights complaint for discrimination. Fortunately, there are a few ways employers can reduce their exposure.
Limiting sick-leave benefits
One approach is to limit an employee’s entitlement to sick-leave benefits on the theory that an employee will be less inclined to take time off if it is not paid. Or an employer might require additional medical information to verify certain absence requests, such as a request for stress leave. For example, an employer might require that, as a condition to getting benefits, a doctor certifies a medically recognized disability. Stress, in and of itself, normally will not qualify, although it may be a symptom of a recognized illness. These requirements should be in place prior to the employee making the request for sick-leave benefits and should be applicable to all employees.
Finally, while a request for stress leave may restrict when the employer may carry out discipline and dismiss the employee, or give the long-awaited performance appraisal, in most cases the employer should carry through with the plan for the employee immediately upon the employee’s return to work or when the employee’s doctor has certified that they are healthy enough to return to work. Discipline or an appraisal may be delayed but should not be denied.
Rob Sider is a lawyer and partner at Lawson Lundell LLP in Vancouver.