Sometimes employees just kind of stop coming to work, leaving employers scratching their heads and wondering where they stand and what to do.
Absence Due to Illness
In many cases when an employee stops coming to work they will tie their absence to illness. Ever get this text? “hey can’t come in today, am sick.” Often an employee will call or text or email in sick for the first few days and then stop communicating.
The connection to illness complicates the matter for employers, who have a duty under the Ontario Human Rights Code (“the Code”) to accommodate employees with disabilities up to the point of undue hardship.
Is an illness a disability? Not necessarily. A cold or flu will generally not be considered a disability under the Code, but this doesn’t mean that employers can just decide an employee who is off sick for a few days has left their job or quit.
Requesting More Information
Employers have a right to information from an employee about their health status and accommodation needs as they relate to the job. If an employee asserts that they are ill and stop coming to work, it is reasonable (and legal) for an employer to request a doctor’s note.
Employers should make the request detailed so that the doctor’s note can be useful to them. While employers are not entitled to private medical information, such as a diagnosis, they are entitled to know when the doctor expects the employee will be back at work, what accommodations they might need and so on.
The key to respecting an employee’s private health information is to ensure that the information requested is connected to the employee’s ability to do their job. For example, if a job requires an employee to drive a vehicle for 8 hours a day, asking if the employee has any restrictions with respect to driving a vehicle for 8 hours a day is perfectly reasonable.
And Getting No Information
So employers can request medical information, but it’s not uncommon for employees not to provide it. Then what? Employees are required to co-operate with their employer with respect to their accommodation needs.
In order to be accommodated, which in the instance of illness due to absence will mean having their job held for them until they are well enough to come back, employees need to:
- Request the accommodation – “hey, I need time off”
- Demonstrate the need for the accommodation and provide specifics of that need – provide a medical note with details of prognosis, restrictions etc.
- Co-operate with respect to accommodation – the employee won’t necessarily get the exact accommodation they want
True Ghosting – What if the Employee Just Doesn’t Respond?
If an employee truly just ghosts, an employer may be able to take the position that the employee has abandoned their job. The legal test for abandonment is as follows:
Do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract?
Where an employee does not respond to an employer, does not keep in touch and fails to provide medical evidence or updates, the test for abandonment may be met. Where an employee is deemed to have abandoned their job, it’s as if they have quit and they are not entitled to any notice or severance. In all cases, employees still need to be paid out for the time they worked and any accumulated, but unused, vacation.
If you’re an employer with a ghosting employee, get in touch for a consultation. We can help you sort through your options.
