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The brewing fight over sick leave

There is a new war being waged in Canadian workplace law, and its battleground is not even a courtroom.

There is a new war being waged in Canadian workplace law, and its battleground is not even a courtroom. This conflict unfolds at doctors’ offices when employees claim they are too sick to work and employers stubbornly disagree. The result is usually a letter-writing war between medical experts, insurance claims examiners and eventually the lawyers.



Employees are entitled to “accommodation” for illnesses and disabilities (even perceived ones), and employers must take all reasonable steps to comply. Although the law may be clear-cut, the facts are seldom straightforward. A “headache” to one physician may be a chronic illness to another.



Given the potential for confusion, disputes often arise. When faced with a challenged sick leave claim, employees ought to do as follows:



1. Do not assume that your employer can read your mind. Put your request for a leave in writing and say that you will immediately visit your doctor to confirm your illness.



2. When you see your doctor, ensure that he or she provides a letter and one with a real explanation. The single most common cause of an incredulous employer is a medical note that simply states that you are “off work until further notice.” If you are too sick to do your job, your doctor must say that you cannot perform any work at all, even modified employment.



3. Do not rashly resist a request for better medical information. In my experience, employees too often refuse to provide further evidence that they are ill. When they do so, they appear as if they are lying. While you do not need to disclose every detail about a medical condition, some details are necessary for the employer to determine how best to accommodate you upon your return to work.



4. If you are prescribed a medical treatment plan, follow it. I have seen many sick leave claims rejected because the employee refused or “forgot” to follow a doctor’s instructions.



5. Do not consider sick leave an entitlement. It is something you must prove and keep in mind that an employer’s willingness to grant your leave is often dictated by factors that have little to do with your health or condition.







Daniel A. Lublin is an employment lawyer with Whitten & Lublin
LLP. Reach him at dan@toronto-employmentlawyer.com. Follow him on
Twitter @danlublin.

 
 
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