By J. Geoffrey Howard

Your whole project team has been working flat out for two weeks to meet a critical client deadline. James, of the project team’s key programmers, is constantly late for work. As a result, your supervisor gave him a second written warning yesterday afternoon, telling him that further incidents of lateness would lead to termination. James is hot-headed and generally does not accept criticism. He reacted angrily to the supervisor’s warning and stomped out of the office. The next morning, James’ wife calls you and leaves a message saying he’s taking two weeks of “stress leave.” His absence could seriously jeopardize your ability to complete the project on time.

The law does not recognize a right to stress leave per se. However, it excuses an employee from working when he or she is genuinely medically disabled due to psychological or psychiatric reasons. That includes disabilities induced by workplace stress. Even disability brought on by self-induced stress, such as James’ hotheaded reaction to the disciplinary warning, qualifies. So, while James’ employer doesn’t have to grant him stress leave, if James can provide evidence, such as a doctor’s note, that he is disabled from working, the law considers that his “illness” excuses him from working until he has recovered.

As for liability to provide sick pay to James, employers are not obliged to pay for sick days or to provide disability benefits. The scope of sick pay or disability benefits offered to employees can be determined at the employer’s discretion, but once established will generally be considered to be contractual obligations of the employer. Whether James is entitled to pay will therefore depend on the terms of the employer’s sick pay policy.

One of the toughest challenges for employers is policing abuse of sick leave.

Perversely, the law puts the onus on the employer to prove an employee is malingering, rather than requiring employees to prove they are truly sick, despite the fact that employees are much better placed to provide evidence of disability.

If James’ manager remains skeptical after receiving the standard doctor’s note, his first step is to request a more detailed medical report from the employee’s doctor. The employer should require James to have his doctor complete a questionnaire that includes details on the diagnosis, treatment, prognosis for return to work and limitations on ability to work.

To increase the chances of a more objective response, the employer should tell the doctor of any background facts, such as the warning given to James, and attach a job description for the employee. By providing this information, the doctor knows what the employee’s job is and any relevant background facts before certifying disability. Employees should also be asked to sign a consent form to allow the doctor to answer any followup questions. Demanding more details can make a doctor reluctant to certify disability in cases where the doctor suspects the employee is exaggerating symptoms.

The employee should also be examined by a doctor selected by the employer. Several agencies provide the services of doctors specializing in such independent medical examinations. However, it’s unclear from the case law whether or when employers can require employees to undergo such examinations, in the absence of an express policy or contract clause authorizing them. At the very least, employers need to show they have reasonable grounds to be suspicious of the employee’s disability claim.

The final and most controversial way for employers to verify whether an employee is abusing sick leave is by monitoring or surveillance. Monitoring can be informal, including occasional calls to the employee’s home when the employee is supposed to be bed-ridden. Sometimes monitoring happens accidently, like when a co-worker runs into an employee off work due to a sore back who’s playing golf. But avoid unjustified repeated checking, which an Ontario court recently found warranted a substantial damages award.

Surveillance is usually conducted by private investigators and involves watching and recording the activities of the “sick” employees. However, before hiring an investigator, employers need to have some reasonable basis for suspecting the employee is cheating. In one recent case, video footage of a moving company employee off work with an allegedly injured back helping a friend move was excluded as evidence on the grounds that the video surveillance was an unjustified breach of privacy laws in the absence of “probable cause” for suspecting abuse.

Finally, can James’ employer call him to ask about work while he is off on sick leave? Although there is no black and white law on this point, there’s nothing wrong with an employer calling an employee on sick leave to obtain critical information, only available from the employee, unless such contact would be likely to aggravate the employee’s condition. In fact, James’ manager might want to use the occasion to discuss James’ reaction to the warning and encourage him to return to work. As when managing other aspects of employees’ performance, open communications might be the best way to encourage employees like James to return to work.

Originally published in Business in Vancouver.

J. Geoffrey Howard is a partner with Gowling Lafleur Henderson LLP in Vancouver. This article is not intended to be legal advice.