Employees on “Stress Leave” — Tips for Handling Employee Requests to Remain Off Work

As employees return to the workplace throughout the phases of provincial reopening in Saskatchewan, employers may be faced with requests from employees to remain away from the workplace. While there may be several reasons for employees to make such a request, one common reason many employers have seen in the past is time off due to “stress,” or other generic catch-all terms for possible disability issues.

Duty to Accommodate

An employee’s request for “stress leave” or related modifications to their work duties may trigger an employer’s duty to accommodate, pursuant to the grounds of disability or perceived disability under human rights legislation. Where a protected ground is established, an employer has a duty to accommodate the employee to the point of undue hardship. To establish undue hardship, an employer needs to provide justifiable reasons for not providing accommodation. As a result, the manner in which such requests are handled is as important as the ultimate outcome. If handled improperly, employers may be opening themselves up to a human rights complaint.

The duty to accommodate requires participation from all involved parties, including the employer, employee and, for unionized operations — potentially the union as well. To determine whether and what type of accommodation is required, an employer should start by obtaining further information about the employee’s request.

Obtaining Medical Information

In circumstances where the employee’s request stems from “stress” or other claimed disability, this information should be obtained from the employee’s medical practitioner. The information provided will assist in determining whether there is a disability that requires accommodation, and what those accommodations need to be. Pursuant to the duty to accommodate, an employee is not entitled to “perfect” accommodation or even their preferred accommodation. The employer only needs to provide reasonable accommodation in the circumstances.

Given the sensitivity of personal medical information, employers can be naturally reluctant to request further information from employees to assist in determining whether accommodation may be required. That being said, in order for an employer to fulfill its duty to accommodate, certain medical information may need to be disclosed. To complicate matters, there is often a conflict between the employee’s belief as to what information he or she is entitled to keep private and the employer’s right to understand the employee’s medical restrictions and abilities as part of the accommodation process.

There is by no means a consensus among arbitrators, courts and human rights tribunals as to exactly what information an employee is required to provide to support an accommodation request.  However, parties can generally expect that the employee requesting accommodation for a disability must be willing to provide at least some medical information to his or her employer which would otherwise be considered strictly personal and private. The information may include but is not limited to:

  • details surrounding the nature of the illness, although a diagnosis is not required;
  • a description of permanent or temporary disability or illness;
  • restrictions and limitations in as much detail as possible;
  • how the medical conclusions were reached; and
  • treatment and medication that might impact accommodation or the employee’s ability to do the job.

In any given case, more or less detail may be required, depending on factors such as the seriousness and duration of the disability, the impact on the employee’s ability to perform his or her job, the history of the employer’s accommodation efforts for that employee, the accommodations that are available, and the prognosis for the employee’s ability to return to his or her previous position.

In some cases, it may be helpful for employers to provide the employee’s medical professional with a copy of the employee’s job duties, and a list of information needed to assist in determining what accommodations may be required. This information can be provided to the employee to give to their medical professional themselves or, with a signed medical consent form from the employee, be provided directly from the employer to the medical professional.

Establishing Undue Hardship

Once additional information has been obtained from the employee, the employer is in a better position to assess whether a disability has been established and if so, whether it will be able to accommodate the employee or whether doing so will create an undue hardship. In many cases, this still requires that the employer is flexible and several accommodation options may have to be attempted. In practical terms, the test for undue hardship is “why not”? In general terms, if the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. Whether undue hardship has been established is very dependent upon each individual workplace and the accommodations required, however, it can often be a long and difficult process. Employers are often dealing with accommodations issues for a number of years, rather than weeks or months.

Employers are encouraged to seek legal advice when determining how best to address employee absences due to stress leave, other disability issues and protected grounds under human rights legislation. Please feel free to reach out to a member of our labour and employment group and we will be pleased to assist.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

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