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Howard Levitt: Companies Need Not Indulge Employees Who Fear Catching COVID-19 at Work, Even if They Have a Doctor's Note

posted 2 years ago

What can employers do if their employees claim they are too stressed about catching COVID-19 and don’t want to attend work. Must they be accommodated?

If your workplace is objectively safe, not perfectly but “reasonably” safe, you can require employees to attend work and terminate them for cause if they refuse. If they challenge the workplace’s safety, a Ministry of Labour Health and Safety Inspector’s report will settle the matter — and either party can require that inspection.

But what if the employee hands in a medical note from a doctor stating that they are anxious and should not be working?

Again, that is not necessarily a defence. It is different if the employee suffers from an anxiety disorder that could be objectively established since that is a recognized medical disability.

But that is seldom the case with the bearers of such notes. It is one of the biggest issues in my employer practice, concern relating to doctors’ notes for “stress leave“ or other conditions, which do not generally constitute disabilities, which must be accommodated from a human rights context. Employers also too often have reason to suspect the bona fides of the stress-leave claim but feel helpless and indulge the employee, fearful of running afoul of human rights legislation. Their coworkers are also often similarly suspicious.

It is somewhat difficult to challenge a medical note, but there are four alternatives.

First, and the best albeit the most expensive, is to have that employee attend a psychiatrist or other specialist in the area of the employee’s disability and have an independent medical examination conducted to ascertain whether the employee genuinely has an anxiety disorder or other genuine disability preventing them from working.

The second is to require the employee to provide consent for your specialist to speak to their doctor to discuss the employee’s capacities and limitations and require the employee’s doctor to delineate precisely what the employee can and cannot do, then attempt to accommodate those restrictions and modify their work on that basis.

The employee is required to co-operate with this. The doctor cannot advise you of the employee’s diagnosis, only their functionalities and limitations.

The third approach is to ask the employee’s doctor to provide a functional abilities’ report, listing their specific functionalities and limitations and provide them with work consistent with those.

Finally, you can arrange a meeting between the company and the employee and discuss what their limitations and functionalities are and devise an appropriate job. Once an employee acknowledges their ability to perform certain tasks, it will be very difficult to later refuse to attend to those.

If through one or more of these four techniques you establish that the employee is able to work but only on a modified/accommodated basis and such a job can be practically (albeit not perfectly) devised, the employee must accept it. Although you have to provide as comparable a job as possible, if the new position is objectively at a lower salary, the employer can pay the employee, for the duration of the accommodation, at that lower salary.

If the employee recovers sufficiently to resume their former position, they must be returned to it.

My office often receives calls from employees who have been absent as result of an illness or injury, but have now recovered and wish to return to work but are not permitted to do so.

That is very dangerous for an employer as the employee has a prima facie right to return as soon as they recover, even to a modified position that they can perform. An employer not permitting them to return will face both constructive dismissal and human rights allegations.

Lately, what my employer clients have expressed confusion about are employees who are cleared medically to return to work and do so. What should their expectations be and to what extent do they have to “listen to the employee” respecting their desired hours and capacities?

Many disability insurers recommend checking in with those employees, regularly tracking their progress. Although checking in regularly when returning to modified work is recommended, at the end of the day, again, the medical evidence prevails.

If an employee is cleared to return to their full job, or even their full job for, say, four hours a day for an interim period, the employer can expect them to perform their full job for whatever period is permitted. If the medical prognosis changes, then the doctor should provide new functional ability reports delineating any new restrictions. If the employee claims they cannot work to the level prescribed in their earlier medical report, a new report should be required.

The unfortunate reality is that too many doctors hand out sick notes willy-nilly, based upon their patients’ requests.

Doctors are now providing sick notes claiming the employee has a disability precluding them from taking the vaccine. The Ontario Colleges of Physicians and Surgeons is finally trying to put a stop to their members providing such notes for medical vaccine exemptions – such a genuine disability is rare and virtually limited to inflammation of the heart and severe allergic reaction to components of the vaccine.

Some employees feign anxiety or another medical condition when they do not wish to work without substantive basis, and employers feel helpless. They are not.

Got a question about employment law during COVID-19? Write to Howard at [email protected].

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-companies-need-not-indulge-employees-who-fear-catching-covid-19-at-work-even-if-they-have-a-doctors-note?video_autoplay=true


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