Can an employer still request a doctor’s note for each absence in light of the Keays decision?
Question: In light of the decision involving Kevin Keays and Honda, is it still permissible to request a doctor’s note from an employee for every absence for workers who have missed an above average number of sick days? We’ve had a policy in place where if a worker is absent more than 15 days in a year, then he/she is required to get a doctor’s note for every absence until further notice. Is this okay?
Answer: Yes, if the employee’s absences are not related to a disability. However, even when the absences are related to a disability, requiring a doctor’s note may still be acceptable. In light of Keays v. Honda, though, it is not a sure thing.
Firstly, Honda is seeking leave to appeal to the Supreme Court of Canada. Therefore, the Ontario Court of Appeal’s decision may not be the final word.
As you know, Kevin Keays had been part of an attendance management program applying only to employees who had a disability. Although being in this program exempted him from attendance-related progressive discipline, it required him to produce a doctor’s note validating each absence. The Court of Appeal upheld the trial judge’s findings that Honda’s course of conduct culminating in termination included a number of acts of discrimination. One was the requirement that Keays provide a doctor’s note confirming disability. The trial judge had the following concerns:
•The requirement defied the nature of chronic fatigue syndrome. There are no specific diagnostic tests to identify this illness and therefore it is based on patient self-reporting. It made little sense to require a note that “parrots” the employee’s complaint that he was unable to attend work because his condition prevented it.
•employees with “mainstream” illnesses were not obliged to obtain such notes before they could return to work.
•The requirement that his absence be medically “confirmed” before his return to work, was in effect lengthening the times Keays was absent from work.
It is becoming clear from arbitral and court review of attendance management programs that hard lines cannot always be drawn in dealing with employees who have disabilities. Therefore, a policy providing that when a disabled worker is absent more than 15 days in a year, and must obtain a doctor’s note for every absence until further notice, may be acceptable if the policy is further amended by providing “unless the circumstances otherwise warrant.”
That phrase should invite individual accommodative assessment because, in the case of certain disabled employees, there may be no need for a doctor’s note for every absence.
There may still be a place for “hard lines” in attendance management programs.
The recent decision in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, saw the Supreme Court of Canada deal with a collective agreement provision which provided that an employee would lose employment if absent for three years by reason of illness.
Some have said that such an automatic termination clause could never withstand a human rights challenge because it is a “hard line.” But in this case, the court was satisfied the parties to the collective agreement could negotiate clauses to ensure employee attendance and such a clause was an accommodative measure. The fact the period was negotiated between the parties provided some measure of proof of the accommodation; however, the court noted the parties could not agree to a level of protection lower than the one to which employees are entitled under human rights legislation.
Importantly, the court in McGill considered that the assessment of what constituted undue hardship started from the beginning of the absence, not from the expiry of the period provided for in the collective agreement.
Accordingly, in your case there may already have been substantial accommodation before the employee reaches 15 days absent in a year and no additional accommodation consideration need be given or even contemplated. Therefore, your policy is acceptable for non-disabled employees and may also be acceptable for disabled employees, depending on the extent of accommodation up to the 15 day absent level.
Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or [email protected]
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Answer: Yes, if the employee’s absences are not related to a disability. However, even when the absences are related to a disability, requiring a doctor’s note may still be acceptable. In light of Keays v. Honda, though, it is not a sure thing.
Firstly, Honda is seeking leave to appeal to the Supreme Court of Canada. Therefore, the Ontario Court of Appeal’s decision may not be the final word.
As you know, Kevin Keays had been part of an attendance management program applying only to employees who had a disability. Although being in this program exempted him from attendance-related progressive discipline, it required him to produce a doctor’s note validating each absence. The Court of Appeal upheld the trial judge’s findings that Honda’s course of conduct culminating in termination included a number of acts of discrimination. One was the requirement that Keays provide a doctor’s note confirming disability. The trial judge had the following concerns:
•The requirement defied the nature of chronic fatigue syndrome. There are no specific diagnostic tests to identify this illness and therefore it is based on patient self-reporting. It made little sense to require a note that “parrots” the employee’s complaint that he was unable to attend work because his condition prevented it.
•employees with “mainstream” illnesses were not obliged to obtain such notes before they could return to work.
•The requirement that his absence be medically “confirmed” before his return to work, was in effect lengthening the times Keays was absent from work.
It is becoming clear from arbitral and court review of attendance management programs that hard lines cannot always be drawn in dealing with employees who have disabilities. Therefore, a policy providing that when a disabled worker is absent more than 15 days in a year, and must obtain a doctor’s note for every absence until further notice, may be acceptable if the policy is further amended by providing “unless the circumstances otherwise warrant.”
That phrase should invite individual accommodative assessment because, in the case of certain disabled employees, there may be no need for a doctor’s note for every absence.
There may still be a place for “hard lines” in attendance management programs.
The recent decision in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, saw the Supreme Court of Canada deal with a collective agreement provision which provided that an employee would lose employment if absent for three years by reason of illness.
Some have said that such an automatic termination clause could never withstand a human rights challenge because it is a “hard line.” But in this case, the court was satisfied the parties to the collective agreement could negotiate clauses to ensure employee attendance and such a clause was an accommodative measure. The fact the period was negotiated between the parties provided some measure of proof of the accommodation; however, the court noted the parties could not agree to a level of protection lower than the one to which employees are entitled under human rights legislation.
Importantly, the court in McGill considered that the assessment of what constituted undue hardship started from the beginning of the absence, not from the expiry of the period provided for in the collective agreement.
Accordingly, in your case there may already have been substantial accommodation before the employee reaches 15 days absent in a year and no additional accommodation consideration need be given or even contemplated. Therefore, your policy is acceptable for non-disabled employees and may also be acceptable for disabled employees, depending on the extent of accommodation up to the 15 day absent level.
Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or [email protected]
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