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Jan 24, 2019

You Asked, We Answered: Top Workplace Law Issues

By Michael F. Horvat

Q.           What is the obligation of the employer to obtain updated medical information from an employee who is absent on long-term disability and has been approved for benefits by the insurer?

A.            A determination made by an insurer as to an employee’s entitlement under a long-term disability income replacement policy (i.e. does that employee meet the definition of “totally disabled”) cannot be exclusively relied upon by the employer. First, the insurer will not (and often legally cannot) provide to the employer any medical information it has received without the consent of the employee. Second, the medical information analyzed by the insurer’s medical staff is directed at determining whether the employee qualifies for insured benefits as defined by the insurance policy, not in respect of the employee’s accommodation and prognosis for return to work. Finally, the insurer is under no legal obligation to consider accommodation options within the workplace (and will typically not engage in this analysis). Therefore, an insurer’s determination that an employee is “disabled” is only reflective of whether that employee meets the threshold for the payment of benefits under the policy, and does not indicate whether that employee will be able to return to work in a reasonable time period, or what options (if any) relating to accommodation could be effective to facilitate that employee’s return. This analysis, legally and practically, must be independently conducted by the employer.

The employer has an independent obligation to review and consider not only the employee’s prognosis (will the employee return to work?), but also to consider the employee’s physical/mental restrictions (can the employee be accommodated at work?). As the legal obligation to determine accommodation is placed upon the employer, rather than the insurer, the employer should request, obtain and review such medical information available to discharge that obligation (and defend the decision that is ultimately made). The employee is required to provide and disclose medical information that would assist in their own accommodation. As such, the employee must disclose his or her physical/mental restrictions and what the prognosis (or limit) of recovery is so that he or she can participate with the employer in any job/duties review and accommodation plan. It is only with this information that an employer can satisfy its procedural and substantive duty to consider options of accommodation.

Therefore, employers should regularly communicate with the employee during their absence to request, receive and review their restrictions and prognosis of their return to work (if possible with accommodation); remind absent employees of their continuing legal obligation to assist in the accommodation process and to disclose such information; and to warn employees of the employment consequences of their failure to respond and cooperate. Finally, in respect of long-term absences for which accommodation has not been (and will not be) possible and which are expected to continue for the foreseeable future, employers may draw an independent conclusion (based on an internal review and investigation) that the employment contract has become frustrated and accordingly pay ESA notice and severance, as applicable, upon termination.

Q.           Under the new requirements for unpaid personal emergency leave provided by the Employment Standards Act, 2000, when can a company reasonably implement an attendance management process?

A.            First, the focus of an attendance management process must be to counsel and improve attendance. It should not include punitive and/or disciplinary consequences, as such action by the employer could be found to constitute a reprisal or penalty against an employee who is only using the benefit afforded them by statute (or policy). The ESA (or applicable employer policy) effectively sets an accepted threshold of absence, at or below which is not (and would not be) considered unexpected or unreasonable. Consequently, application of an attendance management process should not begin until the employee’s non-culpable rate of absence exceeds that established by the ESA (or such greater amount provided by the employer’s own policy).

However, an attendance management policy which focuses on attendance improvement for non-culpable absences can also address culpable absences. Therefore, if the employee has engaged in policy breaches (for example, no-call/no-show; pattern absences; repeated lack of reasonable documentary support for claimed absence), these can be the subject of progressive discipline as culpable misconduct separate from the absence itself.

Q.           How would the hours of work and overtime averaging process apply under the current proposals in Bill 66?

A.            Under the proposed Bill 66 changes, Ontario businesses seeking to have their employees work excess hours or to apply overtime averaging (over a maximum four-week period) will only have to obtain the written approval from the affected employees or the union which represents them. The company will no longer additionally require approval from the Director of Employment Standards. The proposed legislative changes to the ESA will not limit the maximum permitted number of excess hours that can be agreed upon in a day or a work week. Under the new process, an employer would not have to limit the number of weekly hours to 60, for example, to obtain Director approval. However, Bill 66 does not change other long-standing ESA limits on the hours of work, such as the requirement that employees receive at least 11 hours free from work in a work day and a minimum of 24 or 48 consecutive hours off each week (or two) of work (depending on their schedule). Additionally, employers will still have to be mindful of safety considerations as they relate to continuous hours worked in a particular business with “open ended” weekly work hours.

Consistent with the existing ESA requirements for written agreement, Ontario employers will still have to secure an individual agreement with each employee upon whom they wish to apply the hours of work/overtime averaging limits. Only a union will be able to agree on behalf of their bargaining unit. Otherwise, each employee has an individual right to say yes or no. As the default under the ESA is not to have excess hours or overtime averaging, affected employees should not be subjected to a reprisal for failing to agree to any such agreement. Any refusal to accept a renewal of an overtime averaging agreement, or giving notice that they no longer agree to work excess hours, would not constitute cause for termination of employment.

Existing approved overtime averaging agreements will continue in force until their expiry. Businesses must continue to apply for and receive approval from the Director until the Bill 66 changes become law. Any company which has recently applied for overtime averaging or excess hours and has been denied a permit should review the reasons, continue to obtain written agreements with their employees and re-apply. Under the existing ESA process, the company would be entitled to apply the terms of the agreement if no refusal is received 30 days after filing with the Director. Once Bill 66 becomes law, employers will have their written agreements ready to implement their hours of work/overtime averaging policies.

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