Getting a Medical Note When Your Employee is Out Sick
This discussion is based on the notion that you have your employee’s best interests at heart. Needless to say, you should not postpone managing an employee’s performance until they are absent from work on a regular basis. Trying to terminate an employee for poor performance while they are absent on any kind of approved leave is nigh onto impossible and is not the kind of employer you want to be!
Whether your employee knows it or not, they have a written or unwritten contract with you to come work on a regular basis. This is not about coming to work on time – that’s a performance issue; they have contracted to work for you. If, for whatever reason they can’t work for you, you do have the legal right to terminate their employment. Innocent absenteeism is based on the notion that the employee has a valid medical reason to be absent. We must always presume that this is the case – innocent until proven guilty. The reality is that whether your employee is truly sick or not, you still have the right to end their employment if they are unable to come to work on a regular basis.
Think about a situation when you might have your own employee – someone you have hired to look after your children, or an elderly relative. You advertize, you meet with a number of people, you hire. The person starts working for you. They are wonderful. All is well – they show up every single day for two years. And then one day you get a call saying that they are too sick to attend work that day, but they will be back the following day.
Note: when an employee calls in sick, you need to know if it is an illness or an injury and when they expect to be back at work. You do not need to know what their illness or injury is. There is no valid business reason for you to ask for that information. You do not ask; you stop them when they offer the information, and you never offer an employee any medical advice – and that is easier to do if you do not have their medical information. You do not need to know what is wrong with them but rather how their illness or injury will impact their ability to do their job. Too often managers tell their employees what to do to get better – “Go and get a massage” and it may not be good advice. It is not their business.
Your employee is not able to work today and you scramble to find someone else. They return to work the following day and everything is back on track. Two weeks later you receive the phone call saying they cannot come to work. Again, you scramble to make other arrangements. This continues to happen off and on for the next year or so. Then one day you are advised that, yet again, they cannot come to work, only this time they don’t know when they will be able to return to work. Oh no!
You need to get the employee back to work as quickly and as safely as possible. Research clearly indicates that the longer the employee is absent from work, the less likely they will ever return. You will have to do your best to address this issue immediately to ensure a speedy return to work.
At anytime in this scenario you could have asked your employee for a “medical note” confirming that they are indeed unable to attend work due to injury or illness. No matter how much you know, like and trust your employee, there are appropriate times to do this. You should never ask for the note just to punish the employee for taking sick leave. Doctors are really getting fed up with employers doing this as it is such a waste of their time and public resources.
When you ask for the medical note, what you really want to know is if there is a valid medical condition – illness or injury and when they are likely to recover from it and able to attend work on a regular, recurring basis. While they are off on sick leave, you do not need to know what their illness or injury is.
You really do want the employee to stay home when they are too ill to work. You don’t want them to bring their germs to work, nor do you want them to come to work when doing so would jeopardize their safety, a co-worker or client’s safety or that of your loved one. When we hire an employee we should expect and plan for the days when they are too ill to come to work. We should have contingency plans in place.
When an employee comes to work when they are ill or injured, you have every right to send them home. Of course there will need to be a valid business reason, such as they are contagious or they cannot safely perform their job. If they are at work and are not contagious, but they can perform only part of their job, it will be up to you to decide if it is okay, from the business perspective, and the employee’s perspective, if they remain at work.
When an employee is away from work for an extended time, it is wise to ask them for a “medical note” before they return to work. Again, you do not want them back to work if they are still contagious, or if they may prove to be a safety hazard to themselves, their clients/customers or co-workers. Getting a note from their medical professional that spells this out will enable you to know if they are capable of returning to work, and whether or not they are able to return to full-time work, with all of their responsibilities or whether it needs to be part-time work, with fewer responsibilities, or the temporary exclusion of certain responsibilities.
Medical notes are not always helpful. It is not unusual for medical professionals to give a vague medical note when their client asks for one. The client may be feeling ill but there may not be a conclusive diagnosis. If the medical note is vague, you’ll have to ask for more clarity. You may have to spend a lot of time and energy getting a comprehensive medical note, but it is the only way that you will know if your employee is indeed capable of returning to work, when and under what conditions. Your employee guidelines should clearly indicate that if there are any costs associated with them getting a medical note from their medical practitioner it will be at their own cost.
The best medical notes are received from medical practitioners who have a full understanding of their client’s job responsibilities and the whole areas of occupational health. These medical practitioners are usually specialists, not your everyday family practitioner. You may have to direct your employee to attend this kind of specialist. You are probably going to have to cover the cost as well. You are more likely to get that level of cooperation from the employee if that was one of their terms of employment, as per their offer of employment letter or the HR policy manual or employee handbook.
You will have to provide a comprehensive job description to help the medical professional understand the physical and mental demands of the job. Of course the medical opinion is always subjective, but it is the best opinion you have to base your decisions on.
An example: the medical notes says that your employee may only work four hours a day for the next two weeks, without any lifting more than 5 pounds. If your employee is required to lift your 15 pound baby frequently during the day and the medical note is prohibiting this, you cannot allow your employee back to work. They cannot do their job and they may jeopardize their safety and that of your child’s. You want what is best for your employee and your child.
On the other hand if they are not required to lift, then you must do your best to accommodate their need to only work 4 hours a day. As an employer, you have a legal responsibility to accommodate your employee’s request to the point of undue hardship. If it was impossible for you to find someone to work the other 4 hours of your employee’s job, or you decided it would be too disruptive to your child, it is within your right to not permit your employee to return to work until they can work full-time hours. The point of undue hardship is different for every employer. As a small employer, you have less opportunity to accommodate the employee when compared to a larger employer. It is a very subjective concept.
In conclusion, it is best practice to clearly communicate to a prospective employee that you retain the right to ask for a medical note when they are absent on paid or unpaid sick leave at their cost. You also reserve the right to have them attend your medical professional at your cost. You want to get them back to work as soon as possible – for both your sakes. Working well with the medical professionals is often the best way to make this happen.
If the employee sustained the injury at your workplace, the Workers’ Compensation Board (WCB) – or another insurance company – would likely be involved so the employee would likely be off your payroll. If WCB said the employee was ready and able to return to work, you’d have to give them a try at coming back to work. If the WCB folks thought they could never return to work, then you could terminate the employment relationship. If it’s a maybe from WCB, you’d have to maintain the employment relationship until you could definitively prove that they could not do the job or any other job in your company.