Managing employee leaves can be challenging. As workplace dynamics evolve post-pandemic, the complexities surrounding leaves of absence and medical documentation have intensified. Employers need a clear understanding of various leave types, employee rights, and the medical information they are entitled to request for effective claim management.
Note: We’ve drafted this handy explainer, but need to emphasize that these types of situations may have different factors affecting how they should be handled. If in doubt, please reach out to us at Service@hrcovered.com to see how we can help.
Types of Leaves of Absence
When an employee requests a leave of absence, they may only focus on the need for time off. However, employers need to classify the leave type, determine eligibility, establish leave duration, and determine if it’s paid or unpaid. Understanding the employee’s rights during and after the leave is essential.
Protected Leaves of Absence
In Canada, both federal and provincial laws mandate a range of protected leaves, generally around 12-14 types, depending on the jurisdiction. These leaves offer employees job protection and maintain their benefits and seniority. Here are some common protected leaves:
- Maternity Leave: Time off for pregnant employees around childbirth.
- Parental Leave: For parents to care for a newborn or newly adopted child.
- Sick Leave: Paid or unpaid time for personal illness or injury recovery.
- Family Medical Leave: Time off to care for an ill or injured family member.
- Bereavement Leave: Time off to grieve the loss of an immediate family member.
- Compassionate Care Leave: Time to care for a family member with a significant health risk.
- Domestic Violence Leave: For employees dealing with the effects of domestic violence.
- Jury Duty Leave: Time off to fulfill jury duty responsibilities.
Employers should familiarize themselves with the specific requirements for protected leaves under their jurisdiction’s employment standards legislation.
Managing Protected Leaves
For protected leaves, the process often involves issuing a Record of Employment (ROE) when an employee has had or is anticipated to have 7 consecutive calendar days with no work and no insurable earnings from the employer. This is called the “seven day rule” and it’s typically because an interruption of earnings occurs. Generally, employment standards legislation for the province or territory sets out the duration of the leave and the employer must respect the leave duration without pressuring the employee to return prematurely. For longer leaves, employees may need to provide notice if they plan to return earlier than expected. Employers have the discretion to extend leaves beyond statutory requirements, though they’re not obligated to do so. Note of warning: if a leave is extended, it may set a precedent for other employees as well.
Non-Protected Leaves
Non-protected leaves aren’t mandated by law and depend on company policies or collective agreements. These leaves give employers more flexibility in granting or denying them; however, there is also risk associated with them for employers if they are not applied evenly in the workplace. Specifically, the risk of human rights claims of discrimination. Some common non-protected leaves include:
- Personal Leave: For personal matters like travel, family events, or development.
- Study Leave: For educational pursuits such as workshops or further studies.
- Sabbatical Leave: An extended break from work, usually for professional or personal development.
- Unpaid Leave of Absence: May be granted for various reasons outside protected leaves.
While these leaves aren’t legally mandated, some protections, particularly medical-related ones, may still fall under the Human Rights Code or Act of the jurisdiction of employment. Employers should handle these claims with care, as they can be highly litigious and each situation is unique.
Managing Non-Protected Leaves
Effectively managing non-protected sick leaves requires a balance of empathy and diligence. Avoid accepting self-diagnoses; instead, request appropriate medical documentation to confirm the employee’s condition. You’re generally entitled to know the employee’s capabilities, restrictions, and prognosis. When an employee is on medical leave, a Functional Abilities Form (FAF) can provide insight into the employee’s condition, helping inform whether they need time off or reasonable accommodations.The applicable human rights legislation for an employer will assist in outlining what medical information may be sought.
Medical Leaves and the Duty to Accommodate
Accommodation involves modifications to the work environment or duties, such as reduced hours or adjusted productivity requirements, to support an employee’s functional abilities, up to the point of undue hardship for the employer. Accommodation must respect human rights legislation, aiming to create an inclusive workspace; this is called the duty to accommodate. Types of accommodations may include:
- Physical adjustments: Modified workspace arrangements or assistive devices.
- Schedule changes: Reduced hours or telecommuting.
- Return to Work (RTW) plans: Gradual reintegration into work following leave.
When evaluating an accommodation request, depending on the request, the employer may need to seek adequate medical documentation detailing the nature and extent of the employee’s limitations and the anticipated duration of these restrictions. Remember, employers are generally not entitled to specific diagnoses or information outside of what is necessary for accommodations to be put into place.
It’s also important to document all discussions related to accommodation in a confidential manner.
The Accommodation Process
The accommodation process typically involves the below steps and must be a collaborative process between the employer and the employee that takes into account the individual needs of the employee requesting accommodation. Accommodations must be reasonable and appropriate:
- Explore Accommodation Options: Engage with the employee to discuss potential accommodations.
- Consider Preferences: While employee preferences are taken into account, the employer may select a feasible option that meets their needs.
- Review Measures Regularly: Ensure accommodations remain effective and necessary.
- Avoid Claims of Undue Hardship: Before denying an accommodation, ensure all feasible options short of undue hardship are considered.
- Claim Undue Hardship: If an accommodation imposes significant financial burden or risks health and safety, it may be denied, with reasons communicated to the employee.
- Seek HR or Legal Advice: In cases where no suitable work can be found, consult HR or legal counsel.
Special note: while your accommodation process should be uniformly followed for each employee requesting accommodation, the actual accommodation should be unique to the employee’s specific needs. Copying and pasting accommodation plans does not constitute reasonable or appropriate accommodation.
Understanding Undue Hardship
Claiming undue hardship typically involves proving that the accommodation would impose significant financial or operational difficulty. Factors supporting this claim typically include excessive costs, potential health and safety risks, and the availability of external funding. Documentation of undue hardship is crucial, as it can help justify decisions if challenged. Each province or territory has its own definition of undue hardship; it is important to source out the definition in your province or territory.
Medical Documentation and Privacy
The information an employer can request during the accommodation process becomes more detailed as the request becomes more complex. For long-term accommodations, the employee may need to provide comprehensive medical documentation, and in some cases, undergo an Independent Medical Examination (IME). However, employees cannot be forced into an IME, and refusal is permitted. If medical documentation is inadequate, employers have the right to consider the absence unapproved.
To protect privacy, medical records must be stored separately from other employee files and only accessible to those who need the information to fulfill the employer’s duty to accommodate.
Managing Longer-Term Leaves
For longer-term leaves, such as Long-Term Disability (LTD), the process is more legally complex. Without an LTD provider, employers bear the responsibility of the claim and should request regular medical updates. A well-outlined RTW plan can assist in transitioning the employee back to work when ready. Employers are advised to seek HR or legal counsel with these situations before making any permanent decisions regarding employees on LTD.
Final Thought
Managing leave requests and accommodations requires a thorough understanding of and compliance with employment standards and human rights legislation. By developing clear policies, engaging in open communication, striving for reasonable accommodation up to the point of undue hardship, and balancing employee needs with organizational capacity, employers can create a supportive environment that respects both employee well-being and legal obligations.
Do you need a Human Rights Commitment Policy or a Protected Leaves Policy for your province or territory? We have them available in our HR Hub at hrcoveredservices.com.
