Get proof ‘stressed’ employee isn’t just after paid vacation

Stress is real. But it seldom equates to a paid absence.

Too many employees habitually drop off cryptic notes from doctors excusing them from working. I have heard of instances where doctors have provided such notes before even meeting the employee. More often, they see their patients, but perform no objective tests. Even if they do, few general practitioners have the training qualifying them to determine whether an employee is “disabled,” certainly not by reason of stress. Even those that are qualified seldom conduct the requisite analysis and interviews to determine whether the disability in question precludes the performance of that employee’s specific job functions.

False sickleave claims have become the most intractable human resource problem facing Canadian employers. The correct question, in deciding whether to permit medical absences, is not whether the employee is stressed, has a headache or isn’t feeling well, but whether the condition is sufficiently crippling to render that employee entirely disabled from performing their particular job. A surprisingly large percentage of the Canadian workforce is depressed, but works nevertheless, usually quite effectively. Other employees use the slightest discomfort as a pretext for a paid vacation. Their co-workers, who must assume the work of the absent employee, become resentful and, sometimes, noting how easy it is to work the disability system, end up doing the same.

As long as some doctors are prepared to provide medical certificates without the requisite competence or adequate investigation, employers must take a vigorous approach to determining who is entitled to absences and disability benefits.

If an employee has a history of suspicious absences, such as a pattern of taking extra days around summer long weekends, I recommend the employer should do the following, whether the claim is one of “stress” or other “disabilities”:

1. The company should provide its own form for the doctor to complete. That form should confirm that the doctor saw the patient, treated them, and that the doctor believes, in his or her professional opinion, that the employee is totally disabled from working. It should also require a prognosis as to the date of expected recovery and the likelihood of recurrence. In my experience, doctors, faced with a request for such information, will appreciate that their substantive opinion could be “on the line” in a court or arbitration case. They then won’t sign such a certificate unless they are convinced the employee is genuinely disabled.

2. In the event that the medical evidence remains unconvincing, or the employee’s doctor refuses to fill out the employer’s form, the employer should arrange for the employee to meet a doctor who specializes in the area of the employee’s alleged disability. Although the law remains unclear, particularly absent a contract or collective agreement provision, as to whether an employer can require an employee to be examined by a doctor of its choice, in my view, if the employee refuses to do so, the employer is within its rights to refuse payment of disability benefits until the employee complies.

I have just received instructions to sue a doctor for rendering an opinion in a case where I ultimately proved the “workplace stress” to be a fraud. If the doctor’s opinion proves to have been negligently provided, and a judgment is rendered for the amount of the disability benefits ultimately paid, the precedent could eliminate the present easy access to medical certificates.

If employers adopt my two suggestions and require cogent evidence that the employee is disabled, in my experience, those employees who abuse the system will stop doing so. At the very least, they may begin looking for work elsewhere — at a company where their absences might be less closely scrutinized.

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If you, or someone you care about, is dealing with employment law issues in the Toronto, Ontario Region, contact Lang Michener LLP.

This article is taken from an interview with Howard A. Levitt,Employment Lawyer at Lang Michener LLP, a Toronto, Ontario Employment Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.