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Communicating with employees on a disability leave of absence

Communicating with employees on a disability leave of absence

By Yosie Saint-Cyr, LL.B., Managing Editor, HRinfodesk.com---Canadian Payroll and Employment Law News, April 2010

When dealing with a disabled employee, in some circumstances, the appropriate accommodation may be a leave of absence from work. The leave of absence may be for a defined and limited period of time, after which the employee is expected to return to full duties in her or his position; or, for some illnesses or injuries, the health care provider cannot initially determine how long the employee will be away from work or when they will be able to resume their job duties. An organization's disability leave of absence policy describes how its employees may use paid and unpaid leave during a disability leave of absence, and explains the disability leave procedures and how it will be processed, in accordance with human rights legislation.

An involuntary absence from work for medical reasons does not terminate an employment relationship. Employers have legal obligations that continue during this leave. It's important to maintain good relationships with employees and support them through good times and bad, health and sickness. In the last HRinfodesk poll, we asked readers, “In your opinion, are you allowed to communicate with employees while they are on approved disability leaves of absence?” Out of 210 respondents, the majority of respondents (182/86.67%) believed they could, and they are right. Details of the poll results and additional information can be found below.

Communicating during a disability leave of absence

In certain situations, an employee may be able to provide only an approximate date of return. Treatment and recuperation do not always permit exact timetables. Thus, an employer cannot claim undue hardship solely because an employee can provide only an approximate date of return. In such situations, or when employees must postpone their return because of unforeseen medical developments, employees should stay in regular communication with their employers to inform them of their progress and to discuss, if necessary, the need for continued leave beyond what might have been granted originally.

This is one of the requirements in the accommodation process under human rights legislation.

However, the communication process starts from the time the employee makes the request for accommodation.

Following a request for accommodation, the employer and employee both must begin a timely, good faith “interactive process” to determine whether the employer may provide a reasonable accommodation. The employee must participate in discussions and in exploring possible accommodation solutions.

This process is simply a give-and-take communication between the employer and employee about the impact of the impairment on the employee's ability to perform the essential job functions and the potential accommodations to be provided. The employee is responsible for understanding his or her condition, obtaining the necessary documentation to substantiate the need for accommodation, and communicating the information necessary for the employer to evaluate potential accommodations.

In addition, when asked to accommodate an employee, an employer is entitled to sufficient objective medical evidence to demonstrate that a safe return to work is possible. Without specific medical evidence about the employee's physical limitations, the nature of the disability, and the progress of treatment or rehabilitation, the employer cannot determine whether a return to work is safe or possible.

Only the information necessary to determine what accommodation is required should be released, and this only to those who need to know.

Employees should have a continued line of communication with their supervisor/manager regarding extended sick leave absences. Managers should ensure that there are effective processes in place for communicating effectively with employees who are on extended sick leave. To ensure that employees follow the standardized procedures, it is important that these procedures are made known clearly to all employees at the commencement of employment.

Make sure your disability leave policy indicates that such communication will happen, the purpose, when, how and by whom.

All communication with an employees and others during a disability leave of absence must be consistent with a continuing employment relationship, and indicate an expectation that the employee will be returning to work.

Treating employees with respect and communicating well with them is an important part of any HR job and ensuring a safe and early return to work. Also, communication with employees is important in the early stages of the absence and consistently throughout.

Where appropriate, employers should provide training on management and communication skills for managers and supervisors.