The day after I gave my employee a performance improvement plan she went on medical leave. Can I fire her now?
Question: I recently gave an employee a performance improvement plan with a warning that her job was in danger. She did not come into work the next day and later I received a doctor’s note putting her on medical leave for four weeks. This is obviously a ploy. Can I just fire her now?
Answer: Not if you know what’s good for you. You are not a doctor, and you are not psychic. You have to allow for the possibility that this is a legitimate medical absence. If you want to spend $1,000 sending her to your own medical expert to assess whether she’s medically fit to be at work, you can waste that money.
Be aware, however, that if somebody says they are not sleeping properly and feeling anxious and depressed, they will get a doctor’s note because they have said the right things and the doctor is not psychic either.
If the employee stops sending in timely doctor’s notes, contact them and set a deadline for a new note of about two weeks. If it still doesn’t show up, communicate that you will give it another week and then consider them to have abandoned their employment if they do not return to work or provide a note. You would not believe how often the employee just stops sending in the notes and you never hear from them again. Your employee is probably looking for new employment and hopefully for you, they will find it and never return.
If you fire an employee while they are off ill, they will have a hands-down human rights case and you will end up spending a lot of money for no reason. Being patient can often save you a lot of money.
If the employee is cleared for a return to work without accommodations that might affect their performance, then proceed as if the absence never occurred. Monitor and discipline as appropriate.
Question: I have an employee who has been off for three months. Every month, I get a note from a doctor telling me the employee is medically unfit to return to work and will be reassessed in four weeks. The employee started this leave the day after he instigated a confrontation with a co-worker that got loud. I am suspicious of these doctor’s notes. I am willing to pay for it, but what kind of information can I demand from the doctor?
Answer: There are almost no circumstances in which you can ask for a diagnosis or treatment plan. An exception would be if it is in exchange for ongoing sick-pay cheques. If the employee refused to provide the information in those circumstances you would never terminate them, but you could stop the sick pay.
You can ask the doctor the following questions: Is the employee medically unfit to work? Is the employee following the doctor’s recommended treatment plan? Is there any prognosis possible for the employee’s return to work on a full or accommodated basis? Are there any accommodations that might be provided in the workplace to facilitate the employee’s return to work?
You would get this information by writing a letter to your employee, volunteering to pay the reasonable cost of getting the note and setting out the questions you want the doctor to answer.
The truth is the answers to these questions will not tell you much, but it might put pressure on the employee to consider coming back to work or pressure on the doctor to really think about the notes they have been writing if they suspect the employee is malingering.
In all circumstances, unless you have a medical expert telling you otherwise, you have to take doctor’s notes at face value. Ignoring them or asking questions you should not could land you in hot water.
This article was originally published by The Hamilton Spectator.
