Employers don’t have right to ask for specific diagnosis

Before you agree to meet with the investigator, make sure they give you the details of the allegation in writing

Question I have an employee who has been on medical leave for approximately three weeks. The tentative return-to-work date is not for a month. Last week, I learned she posted on Facebook about travelling abroad on vacation. She has already used her two weeks paid sick time, so it is not like the company is paying for this time off, but I find it very disconcerting. Is there anything I can do?

Answer Tread carefully. Your employee may be absent from work as a result of mental-health reasons, and if you disciplined her for having travelled while on sick leave, you might find yourself in the midst of a human rights complaint. For all you know, the doctor encouraged travel to help relieve stress and anxiety. Or perhaps she was visiting a relative in need.

The fact is you do not have the right to ask for a specific diagnosis. You could spend the money and require her to undergo a medical assessment by a doctor you pay but, again, that doctor will not provide you with a diagnosis. They will just tell you whether or not the employee is medically fit to work. You may very well end up spending a lot of money for nothing.

If you had a sick-pay plan that would have covered her up until the time of the trip, your options would be different. There is nothing wrong with an employer asking for the medical diagnosis if the employee wants the sick-pay cheque. There is nothing in the law requiring an employer to pay extensive sick pay, and therefore the employer has discretion as to who they give it to. If an employee refused to provide you with their medical details, you would not fire them, but you would refrain from sending them their sick-pay cheque.

As it is, however, it’s probably best you let this one go for now.

Question I have had a harassment complaint filed against me by somebody who reports to me. The company has hired someone to do an investigation, and I am told I will eventually have to meet with him to answer questions. I don’t know any of the details of the allegations. This is creating an extremely stressful situation for me. What do I do?

Answer The Occupational Health and Safety Act requires an employer to investigate any claim of harassment. They are not obliged to hire an outside investigator, except for situations in which the person who is the subject of the complaint holds the ultimate authority within the organization. That said, many companies do hire outside investigators routinely.

The reality is that if you manage people for long enough, there is a good chance of you eventually being the subject of a harassment complaint. Sometimes they are well-founded, and sometimes people just don’t like being required to do their job.

All I can do is counsel patience. Before you agree to meet with the investigator, make sure they give you the details of the allegation in writing. Immediately prepare a written response, in detail, with respect to the allegations. Give that to the investigator before the meeting. I don’t like a situation in which the subject of a complaint is beholden to the accuracy of the investigator and their note-taking. You should deal with the person that complained about you civilly and professionally, and never discuss the fact of the complaint or its details with them or anyone else in the workplace.

I have seen a number of people in your situation go off ill because of distress. That raises the problem of who is going to pay you if there is no sick-pay plan. Employment insurance does not usually cover the bills.

Above and beyond the financial considerations, for many people it is more stressful to sit at home wondering what’s going on than to keep working through the investigation.