A recent decision of Arbitrator G. T. Surdykowski provides a useful reminder of principles that apply when unionized employees find themselves absent from the workplace due to illness or injury and seek to avail themselves of sick leave benefit provisions.
While each collective agreement is unique, generally speaking, the following may be said:
- The onus is on an employee to establish entitlement to collective agreement paid sick leave benefits
- The employee must establish that an absence is legitimate in the sense that (s)he is genuinely unable to report for work due to illness or injury
- An employer is entitled to sufficient “proof” of the employee’s assertion that she is unable to attend work due to illness or injury and thereby entitled to benefits
- Even if there are no paid leave benefits available, or the employee elects to forgo them, the employer is entitled to notice of the fact and expected duration of an absence for the legitimate business purposes of work force management and absenteeism control purposes
- Both parties have an obligation to facilitate as early a return to work as possible, with accommodation as appropriate where reasonably available
- The employer also has a legitimate interest in investigating suspicious absences and information provided by an employee in that respect
Given the legitimate interests of the employer to manage illegitimate workplace absences – and the competing employee interest of maintaining confidentiality over what can be highly private information – navigating what “proof” an employer can require can be tricky.
We regularly assist and advise employers seeking information and documentation to support employee medical absences. If you are facing this situation we would be pleased to review it with you and advise what type of “proof” can be necessary and appropriate in the circumstances.