Q: ESA rules listed for Ontario. What the rules for Federally regulated employees ESA rules.
A: The presentation was focused on Ontario and Employment Standards Act (ESA) Legislation. For federally regulated employees they are entitled to medical leave with pay (up to 10 days of medical leave with pay per year)
Q: Is it ok to ask for more information on absence details even in a union environment? if not clear in the Collective Agreement (CA)?
A: It is important to always follow any CA rules and processes. In the absence of CA restrictions, yes, you can follow the normal request for information:
See Slide 15 for reference:
What are you entitled to?
• nature of the illness (not a diagnosis).
• expected date of return.
• restrictions and limitations.
• were the physician’s findings based on examination, testing, or self-reporting
• prognosis.
• confirmation of compliance with treatment plan; and
• may require a specialist opinion
Q: Where Workplace Safety and Insurance Board (WSIB) has informed that the claimant will never be able to return to this employment, would that constitute Frustration of Contract?
A: It can in certain circumstances. This is a case-by-case basis. If the long-term prognosis for a return to work to the employee’s own occupation, or an accommodation, remains poor, or not possible, consideration can be given for seeking legal advice around frustration of the contract or termination including implications of any severance or termination pay. See slide 27-28 from the webinar.
Q: In cases where employee has been denied Short Term Disability (STD) based on the adjudication process, and the employee does not provide a return-to-work date and will not provide an updated medical note with updated info on time required off work... at what point does this become a job abandonment? Is job abandonment the same as frustration of contract? Usually, we've dealt with job abandonment as essentially a 'resignation'.
Building on job abandonment question - is there an acceptable amount or recommended amount of time before deciding on this that the company could not be challenged under ESA or human rights, especially in the nature of a claim for mental health? (or after a denied STD claim)
A: In the cases of a denied disability claim, or leave, an employee still has an obligation to participate in the process. This may include appealing the providers decision in a timely manner. Failure to do so may result in a frustration of contract. Please reference slides 17-18.
Q: How can we know if the employee is complying with the treatment plan?
A: This can be a more difficult answer. The best way to know this would be to engage a third-party provider like Cowan Return to Health ® who will be able to engage the employee, their physician to gather more detailed medical information to ensure compliance and appropriate care. When absences are managed by the employer, this can be a question that is asked to the physician. However as noted, the employer is not entitled to the diagnoses or detailed treatment detail.
Some valid questions could be:
• were the physician’s findings based on examination, testing, or self-reporting
• confirmation of compliance with treatment plan; and
• Consider the requirement for a specialist opinion, or independent medical examination
Q: What is the best way to deal with accommodation requests from employees that are around not working certain shifts (i.e. midnight shift) and/or days of week and they provide a medical note from the Dr supporting this with reason such as "based on mental issues" or "based on consistency for medication being taken".
A: Employees are required to provide details as to the nature of the request, including detailed restrictions and limitations and prognosis as part of any accommodation request. Often an employee will just request the ‘outcome’ (i.e. work from home, no-night shift) as opposed to providing details on why it is needed. An employer is not obligated to accept the ‘outcome’ but to accommodate the medical need. The outcome may end up being different from the employee’s request. When in doubt, employers are allowed to ask for an independent medical examination to determine the medical necessity. Please see slides 18 and 27-26 for reference.
Q: Regarding the 3-day entitlement for personal illness, does the employee need to 'claim' the day, or can the first 3 sick days in the year be considered sick leave (job protected)?
A: The employee would be required to report illness days as they would today as part of an absence or attendance management policy. An employer in Ontario is required to provide a minimum of 3 paid sick days.
Q: What if the benefits are co-pay and the employee who is on a long-term absence keeps delaying their payment?
A: Depending on the benefits administration basis with the benefit carrier you can either.
i. set up Pre-Authorized Debit (PAD) and the employee pays the carrier directly
ii. set up EFT with the Finance team (and make sure it's in the policy regarding being 'not actively at work')
iii. pay their portion via paper post dated cheques
Q: If an employee is denied long term disability (LTD) from the provider, are employer co-pay benefits to be cut off?
A: It is important to check the group contract language. The majority of contracts state if the Employee does not meet the eligibility requirements (actively at work, on statutory leave, or approved disability leave) they are deemed to be on a personal leave of absence and therefore benefit continuation is limited (majority are 6 months maximum) and premiums must be paid during this period. This includes the employee's portion of the cost sharing arrangement. Also, check your own LTD internal employee facing policy as it should clearly state how premium payments will be managed during the approved disability absence as this creates equity and treats all employees the same.
Q: If an employee is off work due to Caregiver leave, but the employee's dependent requires that the employee remains off work beyond the dates allowed what is the employers obligations?
A: If the employee is not eligible for another leave type (other ESA leaves, STD or LTD) or employee frustration could be considered. Employer could also allow a personal leave. This would not be considered job protected and would be up to the employer to determine the period allowable.
Q: What are strategies for managing employees with invisible injuries such as migraines and headaches that impact attendance
A: Often these conditions lead to chronic absenteeism or complete absences from work (sick leave, or disability claims). These conditions should be treated in a similar way to all absences or attendance management policies. The employee would be required to support the appropriate evidence and information to support the absence(s). Please see slides 18 and 27-26 for reference.
i. An employer can also consider engaging third party providers, such as Cowan Return to Health, specialist such as occupational therapists or rehabilitation specialists, to try and assist with workplace strategies to improve the employee’s attendance or performance at work. Cowan Return to Health can assist with these assessments, or referrals for preferred providers - including independent medical exams (IME).
Q: Is there an upper limit to the length of absence? If there is nothing in the contract or LTD provisions
A: No, there is no limited. Duty to accommodate ends where employees are no longer able to fulfill the basic obligations associated with the employment relationship in the foreseeable future. Please see slides 23-26 for reference.