The annual KSW Employment Law Seminar was bigger than ever, with attendees joining us both in-person and virtually! As a result, we received more questions than we could possibly answer in our short few hours together. So, our employment law group decided to share with you the questions (and answers) they weren’t able to get to on conference day.

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How would you recommend handling employees who exhaust their holidays and openly say they’ll just call in sick for any days they want off, for example over the holidays. Even sick days are often abused and doctors don’t give notes for common illnesses. Does an employer have options? In our case it means several employees can’t work without that lead on site who’s using a sick day for a long weekend.

You want to be careful about how you approach this, as you do not want to have a human rights complaint on your hands! If you reprimand (or terminate) the employee specifically for taking sick days, and they do have a condition which is causing their frequent absences, this is exactly what could happen.

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Under the British Columbia Human Rights Code, employers can be on the hook for disabilities that they reasonably should have known were the cause of an employee’s poor performance or absenteeism. This is known as a duty to inquire.

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Under the Employment Standards Act, employers have the right to request “reasonably sufficient” proof of an employee’s absence. “Reasonably sufficient proof” includes any adequate information that establishes or helps to establish that the employee’s absence is due to injury or illness. Illness or injury is broadly defined and includes both physical and mental illness. “Proof” may take many forms, for example, a note from a doctor/NP/counsellor, a hospital bracelet, and/or a receipt from the pharmacy.

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If there is an established pattern of absences, as appears to be the case here, it may be reasonable for the employer to require more stringent medical or other proof of illness, even if the employee’s leave is only one day at a time. You will want to be flexible (at the start) in how you approach the sick note (e.g. if they need a few days to get the note because doctors are busy, if they can’t bring it in for a few days because they are ill, etc.).

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If the employee fails, or refuses to provide notes at all, then you could potentially start setting the employee up for progressive discipline for unauthorized absences. It is important to approach this cautiously and properly. In this regard, it would be helpful (if you do not have one already) to have sick time policies implemented in your workplace relating first, so there is absolutely no uncertainty of the requirements for employees.

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Of course, every situation like this will be different, and should be approached with caution (to ensure you do not have a claim on your hands!). Our best recommendation would be to speak with an employment lawyer first, who can provide specialized advice to your specific situation.

- Courtney Burnett, Paralegal

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What can you do if the reduced hours options if the employee is not able because of affordability.

We believe this question is in relation to reasonable accommodations of an employee and will answer as such. If we have misinterpreted your question, please reach out to us again.

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Under both the Human Rights Code and the Workers Compensation Act, when approaching the accommodation process, the employer has a duty to accommodate an employee to the point of undue hardship. To fulfill this duty, the employer must show that it took all reasonable and practical steps to avoid the negative impact (e.g. termination, having no job for the person to return to, etc.). This includes proving:

• ‍What the employer did to explore options to find a reasonable result;
• Why further steps were not reasonable or practical (would result in undue hardship); and
• The employer’s basis for concluding that it could not accommodate the employee without incurring undue hardship.

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Undue hardship takes many forms and can include financial costs. However, it is not enough to simply say “financial reasons” and that nothing further can be done. An employer must be able to provide evidence of the effect that such accommodation would have on the employer.

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Conversely, the employee has a duty to cooperate with the employer in the reasonable accommodation process. If the employer can show that in order to accommodate the employee, it must provide the employee with a reduced hours position, and there are no other options, but the employee refuses that position, the employee could be failing to meet their duty to cooperate.

- Courtney Burnett, Paralegal

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How should you work with WorkSafeBC and what are the consequences of dealing with WorkSafeBC especially related to bullying and harassment. Can or will WorkSafeBC close an office due to B&H?

The action taken by WorkSafeBC will depend on factors such as the severity and duration of the issues. If, for example, the company has already had previous reported incidents and has failed to correct the issues, it could be subjected to more serious penalties compared to a company that has not previously had reported incidents

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Although WorkSafe has the power to close a workplace for an unsafe work environment, this is a relatively uncommon step. Rather, WorkSafe will more likely attend the workplace to inspect it and/or require that the employer take remedial steps such as a compliance agreement.

- Jenson Leung, Lawyer

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How should a manager (CEO) deal with B&H towards them.

Generally, where a manager is accused of bullying and harassment (or subjected to it), they should not be conducting or directing the investigation. If the workplace has a bullying and harassment policy, it should be followed as it would for any other employee. If there is no such policy, we would recommend ensuring that one is prepared (for future incidents).

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If the CEO or other senior manager is being subjected to bullying and harassment, it may be appropriate to request an external investigation or report the matter to WorkSafeBC. Depending on the nature of the bullying/harassment, it could also give a basis for a constructive dismissal and/or human rights complaint (if it is coming from, for example, a shareholder). If the bullying/harassment is from a subordinate, progressive discipline may be the appropriate avenue. Either way, in a case where a senior manager is involved the manager and the company will likely require separate legal advice.

- Jenson Leung, Lawyer

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What rights do volunteers have regarding B&H. I’m with a new non-profit. I have a staff policy manual. I see where it needs updating regarding working at home and the office, etc. I was with another for about 30 years.

Volunteers can file a claim to the BC Human Rights Tribunal for bullying and harassment if the bullying and harassment is tied to a protected characteristics such as race, place of origin, gender identity or expression, Indigenous identity, marital status, mental and/or physical disability, etc.. They cannot however make a claim to WorkSafeBC for mental health injuries because of bullying and harassment unless the not-for profit has specifically paid premiums to WorkSafeBC for those volunteers. It is recommended that workplace policies, such as respectful workplace and privacy, be applicable to volunteers and outline consequences if the policies are breached, up to and including the end of the volunteer commitment.  

- Fiona H. McFarlane, Lawyer  

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If an employee has cancer and is needing time off for surgery are we able to ask for a dr. note for how long is recommended for the employee to recover?

No, information about an employee’s recovery time cannot be requested from the doctor. If the employee is asking to use their 5 paid sick days or 3 unpaid sick days allowed because of the Employment Standards Act, proof of illness may be requested. If the employee is asking for an unpaid leave of absence and may qualify for EI Sickness Benefits (26 weeks of financial assistance if the employee can't work for medical reasons) then proof of illness may be requested. In both instances, the proof of illness does not need to provide a specific diagnosis or prognosis however should have sufficient information for the employer to understand the employee cannot work due to illness. Timing and what is proof of illness is fact dependent so legal guidance may be required. Due to the sensitive nature of the medical information the proof of illness will contain, the proof of illness should be kept on an need to know basis.  

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Once the doctor has said the employee can return to work after treatment, the employer can ask for a note from the doctor to understand how the employee’s illness and/or any lingering effects of treatment may impact the return-to-work. The request cannot ask for a diagnosis or prognosis however can ask whether there are any limitations that need to be accommodated in the workplace.  Limitations might require reduced hours of work, or changes to the physical demands of the job so the request for a doctor’s note can be accompanied by a job description for the employee so the doctor can comment on which job tasks require accommodations and what are the recommended accommodations. There may be several suitable accommodations, and the standard is not one of perfection, so it is important to have an ongoing dialogue with the employee as they return to work, and you determine how you can fulfill the employer’s duty to accommodate. Failing to accommodate an employee can result in a claim to the BC Human Rights Tribunal so legal guidance is recommended.  

- Fiona H. McFarlane, Lawyer  

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What questions should you ask a potential investigator.

We suggest using a specialist experienced investigator or lawyer to conduct a workplace investigation when the following factors are at play:

• ‍Strong power imbalance between the complainant and the respondent
• Complexity of complaint, where it may involve violence or sexualized content
• Appearance of bias or potential bias to exist if it is kept in-house
• Background and level of experience/training designated person in-house may hold (or not hold)

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Questions to ask:

• ‍Level of experience – have they investigated scenarios like the one you need investigated?
• Training – have they learnt questioning techniques that mean everyone will feel heard, and information is shared on a need-to-know basis?  Are they trauma informed and culturally aware? [Please note there, while some US states require licenses, there is no government agency in Canada issuing licenses for workplace investigators and a license is not a requirement to be a workplace investigator in Canada.]
• Conduct of the investigation and the report – estimated costs and timeline? What is within the scope of the investigation? What is the process going to look like? Are in-person interviews going to take place or are video interviews acceptable? Is travel required?
• Knowledge of rules that establish a fair and defendable process – what does the investigator tell everyone about the confidentiality of the process and retaliation? Do they know the rule in Browne v. Dunn (legal principle that says each party may hear and respond to new or contradictory evidence before the workplace investigator relies on it)

- Bonnie-Louise Lussier & Fiona H. McFarlane, Lawyers

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