You can’t fire me! I’m sick!
With the economy firing on all cylinders in Alberta, companies are growing and taking on more employees. The continued growth of the province’s economy has created a well-educated, highly motivated workforce that is the envy of other provinces.
Clearly, the boom in the economy has created challenges for employers, especially concerning the issues of attracting and then retaining employees.
Yet equally important, in terms of managing your human resources, is to thoroughly evaluate the circumstances when you want to fire an employee, before taking any action.
In certain situations, if not handled properly, terminating the employment of an employee who is not meeting your expectations can cause your company real legal problems. These could even include a hefty price tag your company may have to eventually pay if your former employee sues you and wins.
The doctor’s note: an unforeseen complication
One potential minefield that has been causing increasing concern for human resource professionals is the “unexpected doctor’s note.”
Consider the following scenario, which focuses on non-unionized employment situations:
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One of your employees is underperforming. Together with your managers, you evaluate the situation and make a decision to dismiss the employee, either with notice or with payment in lieu of notice. |
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Prior to advising the employee of the decision to let him go, an event occurs. The employee suddenly shows up with a doctor’s note advising your company that he is sick.
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What should you do in light of this new information? Here are some suggestions that may help protect your company from legal action.
Put on the brakes!
Much as you might doubt the legitimacy of the employee’s claims and prefer to dismiss the employee in spite of the doctor’s note, put on the brakes and do not take any precipitous action!
You should accept the doctor’s note at face value despite any personal bias you may have against the employee. It would be a mistake to assume the employee is making a fraudulent claim without having clear evidence that this is the case.
The reason for your caution is twofold:
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If your employee’s poor performance is attributable to his illness and you fire him, your action could be considered discriminatory under human rights legislation. |
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The employee’s dismissal will likely result in the termination of his benefits, including Long Term Disability (LTD) benefits. As the employer, you could effectively run the risk of becoming an insurer for a period of time if your employee requires those benefits after he is dismissed.
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If you choose to simply ignore the doctor’s note and proceed with the dismissal without a fair investigation, you may be faced with a significant liability.
Under Human Rights legislation in Alberta, you have certain obligations to accommodate your employee to the point of undue hardship when he is suffering from an illness or disability. In reality, “accommodating” may mean adjusting your employee’s job duties to reflect what he can or can not do as a result of the illness or disability.
If you do not live up to your obligations, your employee can file a complaint with the Alberta Human Rights Commission. So keep in mind:
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The Alberta Human Rights and Citizenship Commission (www.albertahumanrights.ab.ca) can provide you with initial information and guidelines on your obligations to accommodate employees with an illness and/or disability. |
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You should be aware that Alberta human rights tribunals have the power to order reinstatement of employment.
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Alternatively, your employee can seek compensation by suing your company for wrongful dismissal and loss of disability benefits.
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If your conduct has eliminated your employee’s access to LTD benefits, the court may award significant damages against the company. |
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If it is later judged that you acted in bad faith, you could be liable for additional damages and be faced with a separate claim for the intentional infliction of mental distress.
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Investigate and assess the situation
Presented with the doctor’s note, you are thrown into a real quandary. Was this a pre-emptive strike on the part of the employee to take action before he is fired? Or is the employee really ill? This makes it all the more important that you investigate before taking any action.
You might want to consider the following:
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Did your employee have an inkling that he was about to be dismissed? If so, does procuring the note represent an attempt by him to justify a claim for a larger severance package in exchange for a release? Is he hankering after disability benefits that your third-party insurer could provide?
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On the other hand, perhaps the employee truly is ill. Is this an employee, who until recently, met or exceeded performance expectations? If so, how has his performance changed and since when?
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Clearly, the timing of the doctor’s note may strike you as odd, coming as it does on the eve of the employee’s termination. Yet ironically, the stress of an impending termination could cause enough fear that your employee actually went to see a doctor for help in handling the stress. After all, no one likes the thought of being let go and some people do not handle it as well as others. |
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Consider checking with your insurer. You don’t want to dismiss the employee and later find out that there was an illness or disability. |
What makes the situation even more perplexing is that many illnesses may not be readily apparent. For example, today’s employers are faced with claims of soft tissue injuries, chronic pain, or emotional or mental illnesses.
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Is your employee under stress due to an inability to perform the requirements of the job?
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Alternatively, is there an underlying medical condition or injury that has created disabilities that inhibit him from fully satisfying his job requirements?
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In the latter case, this might explain why an employee from whom you have come to expect top-notch work is now performing below par.
Be sensitive to the emotional issues
The process of dealing with these types of claims can be very emotional and result in hurt feelings, particularly if your employee believes he is being “second-guessed” about his claims of disability. You should carefully review his job requirements, performance and conduct problems, as well as details about any benefit requirements and arrangements your company may have in place with a third party insurer.
You should be cautious in obtaining further information from your employee’s doctor and obtain the employee’s consent to release this information where necessary. In order to obtain sufficient information to accommodate the employee, it is very important to provide the employee’s doctor with an accurate job description, job tasks and responsibilities, and work modifications available for the employee’s position. You need to make clear to the employee that you are not fishing for information but that instead, this information is required to accommodate any disability and to satisfy the terms of any disability benefit programs in place.
Understand that from the insurer’s perspective timing may be everything
If you choose to dismiss the employee in spite of the doctor’s note, it could mean your insurer could possibly decline to pay any benefits. In fact, from the insurer’s point of view, timing may be everything. You should keep in mind:
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The timing of the onset of the illness or disability is critical in determining whether or not the insurance is available in that particular situation. |
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When did the disability or illness arise? Was it during the period of active employment? Your company’s insurer will carefully scrutinize the evidence if the claim for disability arises at or after termination of employment. |
Realize there are no cookie-cutter solutions
If, after investigation, it becomes clear that your employee’s work is indeed suffering due to an illness or disability, you may have no choice but to make the necessary adjustments in his job description and duties, perhaps even make changes that affect other employees. If it turns out that these changes may create undue hardship for your company, such as significant financial difficulties, you should seek legal counsel.
Therefore, if you are faced with a doctor’s note in the face of an upcoming dismissal, you must make genuine efforts to impartially assess the employee’s situation. If your employee’s performance issues are truly due to a disability, you may have to accept the fact that you can not dismiss him until you have fully explored accommodating his situation.
Borden Ladner Gervais LLP is among Canada’s most respected full-service national law firms. With more than 700 lawyers, intellectual property agents and other professionals in six offices across the country, BLG provides corporate legal services to a wide range of clients nationally and internationally in virtually every area of law. For more information, visit www.blgcanada.com.
This e-newsletter is not intended to be a complete statement of the law or an opinion on the subject. Although we endeavour to ensure its accuracy, no one should act upon it without a thorough examination of the law after the facts of a specific situation are considered. No part of this publication may be reproduced without prior written permission of Borden Ladner Gervais LLP.
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