Managing employee leaves can be challenging for nonprofit organizations, especially those operating without a dedicated human resources team. As we navigate the evolving landscape of the post-pandemic workplace, the challenges surrounding leaves of absence and medical requests have become increasingly complex. Nonprofits need to know how to properly classify a leave of absence, know the rights and obligations of the employee specific to the leave, and understand the medical information they are entitled to as an employer in order to effectively manage a claim. Surprisingly, many employers are unaware of these crucial pieces of information. 

Well, fear not. We are back with another article to help you stay informed and equipped with the necessary knowledge and as always, a few valuable resources to assist you in the process. Here’s a list of all free resources you’ll find:

• Functional Abilities Form
• Attendance & Leave Tracker
• Absenteeism and Attendance Policy
• Employment Contract Template for Ontario Nonprofits
• Webinar Recording: Managing Leaves of Absence and Requesting Medical
• Recording of 45-Minute Live Q&A: Continuing the Conversation: Managing Leaves of Absence and Requesting Medical

The different types of leaves of absence

When employees seek a leave of absence, they may only be aware of their need for time off due to illness or personal reasons. As an employer, it becomes crucial for you to understand the type of leave of absence the employee may be entitled to, determine if the employee is eligible, establish the duration of the leave, and determine the payment status of that leave (paid or unpaid). Gaining an understanding of the employee’s rights during and after the leave of absence is equally important.

Let’s explore the types of leaves you will come across as an employer.

1. Protected leave of absence: 

The federal and provincial governments in Canada mandate employers to provide eligible employees with a comprehensive range of leaves of absence, which typically amount to around 12-14 leaves, depending on the jurisdiction. These leaves are designed to grant employees the opportunity to take time off work for specific reasons, ensuring they do not face the risk of job loss or other unfavourable consequences.

Protected leaves of absence fall under the purview of the employment standards legislation of  each specific jurisdiction. These leaves entitle employees to take time off with job protection, and in some cases, may require documentation. The protections afforded to employees during a protected leave encompass job security, continuity of benefits, and preservation of seniority, making them applicable to both short and long-term absences. 

Some of the common protected leaves in various jurisdictions include:

• Maternity Leave: Allows pregnant employees to take time off work before and after giving birth.
• Parental Leave: Allows parents (both biological and adoptive) to take time off to care for their newborn or newly adopted child.
• Sick Leave: Provides employees with paid or unpaid time off to recover from an illness or injury.
• Family Medical Leave: Allows employees to take leave to care for an ill or injured family member.
• Bereavement Leave: Provides time off for employees to grieve the loss of an immediate family member.
• Compassionate Care Leave: Allows employees to take time off to care for a family member who is gravely ill with a significant risk of death.
• Domestic Violence Leave: Offers employees time off to deal with the effects of domestic violence or to support a family member who is a victim of domestic violence.
• Jury Duty Leave: Provides employees with time off to participate in jury duty.

Here’s an essential HR document that’ll help you manage your employee absence and attendance efficiently. 

Managing protected leaves

Short Term Leaves

Managing short term leaves involves issuing a Record of Employment (ROE) for the employee on leave, and that typically concludes the process, unless the employer intends to continue paying the employee during their leave. In most situations, the employee is not obligated to provide an end date for their leave. As an employer, you must assume that the leave will run its full duration, and it is not permissible to pressure or require the employee to return to work prematurely. Respect for the employee’s leave and their rights is essential during this period.

Long-Term Leaves

For all longer-term leaves, it is a requirement for the employee to provide advance written notice if there is a change in the end date. If they intend to return earlier than initially planned, they must provide notice accordingly. It is of utmost importance to have a termination clause in your employment contract that outlines the specific notice period the employee must give in such situations. 

Looking for an enforceable, lawyer-written employment contract template? Your search ends here! 

The employer is not obligated to extend the leave beyond the end date specified by employment standards legislation. Should an extension be granted, it becomes an employer-approved leave of absence, and the employer has the discretion to make such a decision.

2. Non-protected leaves:

Non-protected leaves in Canada refer to leaves that are not governed by specific legislative requirements or the ESA. Instead, they may be subject to employer policies or collective bargaining agreements. Unlike protected leaves, non-protected leaves are not guaranteed by law, providing employers with more flexibility in their decision-making process to grant or deny them. 

Examples of non-protected leaves include:

Vacation Leave: While many employers offer vacation leave as part of their benefits package, it is not a protected leave under Canadian employment standards. The entitlement to vacation leave and the terms associated with it are usually outlined in the employment contract or company policy.

Personal Leave: Personal leaves are generally not protected by law and are subject to the employer’s discretion. Personal leaves may be granted for personal reasons, such as travel, family events, or personal development.

Study Leave: Leaves taken for educational purposes, such as attending workshops, seminars, or pursuing further studies, are usually not protected by employment standards.

Sabbatical Leave: A sabbatical leave is an extended break from work, often granted for professional development or personal reasons. Sabbaticals are not typically protected by law, and the terms are usually negotiated between the employer and employee.

Unpaid Leave of Absence: Some employers may offer unpaid leaves of absence for various reasons, but these leaves are not protected by employment standards.

Extended Leaves beyond Protected Leaves: If an employee needs to take time off work for reasons not covered by protected leaves, the employer may grant an extended leave, but it won’t be protected by law. The most common circumstances include:

• Medical Reason
• Leave due to illness or injury
• Short Term or Long Term Disability (STD/LTD)

It’s important to remember that the availability of non-protected leaves can vary significantly depending on your HR policies, employment contracts, and collective bargaining agreements. 

Do you have a stringent absenteeism & attendance policy in place?

Although most of these leaves are not protected by legislation, they still receive protections under the Human Rights Code, particularly medical leaves. It is crucial to note that discrimination against a protected status is strictly prohibited. For instance, employees on sick leave typically require benefits unless explicitly addressed in your policy. It is essential to handle these types of claims with great care, as they can be highly litigious. Engaging an expert in the field is advisable to navigate such matters effectively.

Managing Non-protected Leaves

Effectively managing non-protected sick leaves demands a delicate balance of empathy and diligence. As you handle cases, you will encounter employees genuinely in need of support and others possibly with alternative motives. Recognizing this reality and incorporating checks and balances into your process are essential for proficiently managing disability and medical leave cases.

1. DO NOT allow or accept a self-diagnosis.

Under no circumstances should you allow or accept a self-diagnosis. One of the most critical mistakes employers can make is unquestioningly relying on an employee’s word alone. In many instances, such self-diagnoses lack medical verification entirely. For genuinely ill employees, the process should be designed to help them access the necessary support while ensuring you receive the verification required.

2. Appropriate and satisfactory medical documentation. 

When an employee mentions being ill, a medical note stating ‘off work for medical reasons’ is not sufficient in most cases, and you are not obligated to follow this ‘advice’ in many situations.

In evaluating medical information, the term “appropriate and satisfactory” refers to your entitlement to understand the employee’s capabilities, restrictions, and prognosis (not a diagnosis). Equipped with this essential information, you can make informed decisions about whether the employee requires time off work, can continue working with reasonable accommodations, or if necessary adjustments can be provided.

3. Functional Abilities Form

Whenever an employee mentions having an illness (even if not going off work), indicates being off work for any length of time, or remains absent for an extended period (typically exceeding one week), it is imperative to require them to have their doctor complete a non-occupational functional abilities form (FAF). This form helps provide comprehensive insight into the employee’s condition and abilities, guiding the appropriate course of action.

Medical Leaves and Accommodation

Accommodation encompasses any modification to the work or workplace, which may include reduced hours, adjusted productivity requirements, or the provision of assistive devices. The goal is to create a work environment that aligns with the worker’s functional abilities while respecting relevant human rights legislation.

Various types of accommodation include:

• Physical changes
• Human or technical supports
• Schedule adjustments
• Part-time hours
• Flexible work arrangements
• Telecommuting (working from home)
• Medical leave

The employer has the authority to provide accommodation and/or offer a Return to Work (RTW) plan. This can occur at the beginning of the Short Term Disability (STD)/Long Term Disability (LTD) period or at any point during it. It is legally incumbent upon the employee to cooperate with any suitable accommodation and/or RTW plan offered by the employer.

Reasonable Inquiries

To determine if an accommodation is medically required and available, the employer is entitled to reasonable inquiries regarding: 

• Duration of absence
• When employee is being reevaluated
• Whether and when recovery is expected

Accommodation process

Upon receiving the required medical documentation, the employer and employee will collaborate to establish the accommodation process.

STEP 1: The employer will engage in discussions with the employee to explore available accommodation and Return to Work (RTW) options.

STEP 2: Employee accommodation preferences will be taken into account. However, the employer may choose a less costly or more feasible option that still meets the employee’s accommodation needs.

STEP 3: Regular reviews of the accommodation/RTW measures will be conducted with the employee to ensure their continued necessity and effectiveness.

STEP 4: Before refusing any accommodation/RTW request, the employer will ensure that all feasible options, short of causing undue hardship, have been duly considered.

STEP 5: Should the available accommodation options impose undue hardship, the accommodation request, along with any RTW plan, will be denied. The employer will communicate the reasons clearly to the employee.

STEP 6: In the event that an exhaustive search for accommodation has been conducted, and no suitable work is found, the employer will collaborate with Human Resources and/or legal counsel to determine a reasonable course of action.

Undue Hardship

Claiming undue hardship means asserting that providing accommodation places an unreasonably substantial financial burden on the employer. There are three key factors to support a case for undue hardship:

• The cost of the accommodation is so substantial that it would significantly and adversely impact the overall operation.
• The employer has an obligation to explore external funding sources to offset the accommodation’s costs.
• The accommodation poses a health and safety risk to the employee or others.

Medical Disclosure When Requesting Accommodation

As the accommodation process progresses, the type and extent of information the employer is entitled to receive becomes more comprehensive. Requests for permanent accommodations place the onus on the employee to provide sufficient and detailed medical documentation. In such cases, the employer’s obligations heighten, but so do their options.

In specific circumstances, the employer may ask for an Independent Medical Examination (IME). However, the employee cannot be compelled to consent to it, and refusal is permissible. It is crucial to note that inadequate medical information and refusal of IME may lead to the employee being deemed absent without justification, which could result in termination.

All records associated with accommodation requests must be securely maintained in a separate location from employees’ personnel files and shared only with individuals who need the information. 

Employers have the right to access the following information to fulfill their duty to accommodate medical restrictions up to the point of undue hardship:

• Details of any functional limitation(s) experienced by the employee that conflict with workplace requirements.
• Information regarding the nature and degree of any physical restrictions and the duration of such restrictions (i.e., permanent or temporary).
• Details of any treatment needs, medication, or medical interventions that affect the employee’s participation in the workplace, such as scheduling medical appointments during working hours.
• In cases of total disability, details of the prognosis in terms of timing for return to work, or at least some indication of when further information on the matter may be available.

The employer is not entitled to ask for the employee’s specific diagnosis unless specific statutory language or special circumstances warrant it.

Managing longer-term leaves

Managing longer-term leaves can be challenging and legally complex. Typically, after 15 to 17 weeks, employees are considered on Long-Term Disability (LTD). If there is no LTD provider or policy, the employer becomes responsible for the claim and should request regular medical updates. 

Having a LTD benefit provider allows the employer to be involved as they prefer, but they should not solely rely on the provider’s recommendation for Return to Work (RTW). The longer the claim persists, the greater the entitlement to more detailed medical information and potential accommodation obligations. 

Managing claims without expertise poses significant risks. Regarding benefits, employees on sick leave are covered by the Human Rights Code (HRC), and cutting off benefits without specific policy language should be approached cautiously. There is typically no set time frame for termination, and the doctrine of frustration of contract can be complicated and case-specific.

Job Abandonment

If an employee fails to provide satisfactory medical justification for an absence, the employer may consider proceeding with job abandonment. It’s important to note that providing inappropriate or unsatisfactory medical documentation may also lead to termination.

Process:

• The employer will send the employee a registered letter, clearly stating the expectation for the employee to contact them immediately with acceptable justification for their absence, along with the required documentation.
• A deadline (typically 3 business days) will be provided for the employee to contact the employer and provide acceptable justification and/or documentation.
• If the employee does not contact the employer and fails to provide acceptable justification and/or documentation within the prescribed time period, the employee will be terminated for cause, on grounds of job abandonment.
• If the employee provides reasonable justification and/or documentation within the given time frame, the employer may still discipline the employee accordingly for failing to cooperate in a timely manner with this policy and the established expectations.

Frustration of Contract

Frustration of contract is an option that may be considered under specific circumstances when the employee fails to provide the services upon which the contract of employment is based. However, it is essential to note that the burden of proof to substantiate frustration is high, making it a last resort option.

Frustration of contract may be considered in the following circumstances:

• When there is no reasonable likelihood that the employee can return to work within a reasonable time due to a disability.
• When the employee may return to work but is only capable of performing significantly different tasks than those originally agreed to, meeting the criteria of undue hardship.
• When there is no reasonable likelihood that the employee can maintain regular attendance in the foreseeable future, even with accommodation.

The consideration of frustration of contract should be approached cautiously, as it involves specific conditions and legal implications. Employers should carefully assess the situation and seek expert advice before pursuing this option.

Questions & answers

We recently organized a groundbreaking webinar on the topic of “Managing Leaves of Absence and Requesting Medical,” which was followed by a 45-minute LIVE Question and Answer session. The response was overwhelming, with a significant participation of nonprofit leaders from across Canada who had pressing questions that required answers. We are pleased to share the recordings of both these highly informative sessions with you, making them available here for your convenience.

It’s essential to note that the specific rules and regulations surrounding leaves of absence may vary between provinces and territories in Canada. Each jurisdiction has its own employment standards and labour laws, so it’s essential to refer to the legislation in your specific province or territory for accurate and up-to-date information. Additionally, employment contracts and collective bargaining agreements may also impact an employee’s entitlement to various types of leaves. Should you have any questions regarding leaves of absence, medical documentation requests or accommodations, book an appointment with our HR expert here. 

About HR Covered: At HR Covered, we have a deep understanding of the critical organizational needs and processes specific to Canadian nonprofits. We ‘get’ your culture, your goals, and what drives you, too. Our unparalleled responsiveness and impeccable service have helped more than 200 nonprofits in Canada to focus on their core activities. We provide a plethora of services including HR Compliance, Legislative Training, HR Documentation, Health & Safety Compliance, HR Legal, HR Consulting and Outsourcing. For more info visit our website: www.hrcovered.com or call us at +1 866-606-0149.