Devry Smith Frank LLP

May 12, 2014 09:00 ET

Staff Sick on Stat Holidays?

Rules for Employers Fighting Faux Fatigue

TORONTO, ONTARIO--(Marketwired - May 12, 2014) - For Marty Rabinovitch, an employment lawyer with Devry Smith Frank LLP the Victoria Day long weekend is calm before the storm. Floods of calls come in on the first day back to business; employers call to assess the legality of removing staff who suspiciously extend their long weekends, and employees call in shocked they have been accused of feigning illness for an extra day off.

According to Rabinovitch, neither party has complete clarity on looming legal landmines.

"Employers can easily get frustrated with an employee that they suspect of 'time theft' and ask questions that violate privacy rights," said Rabinovitch. "While employees feel pressured to answer personal questions, they may inadvertently give employers the grounds for a dismissal case. It's important that both parties know their rights and act to preserve them."

To keep things productive, Rabinovitch has compiled a quick reference for employers to keep their working relationships healthy:

5 Rules for Employers Fighting 'Faux Fatigue'

1) Always call back

If an employee leaves a sick message or has some one else call in for them, always call back. This gives you an opportunity to ask key questions and document the conversation.

2) Ask if you will be receiving a doctor's note

This is essential to know if there's a chance you may be getting duped. It's also important to ask if the employee has seen a doctor to gauge the potential severity of the illness.

3) Be cautious with your questions

Employers have the right to ask questions when an employee calls in sick, but can't violate the employees' privacy. A quick rule is to ask questions that lead to 'a prognosis, not a diagnosis.' In other words, you have the right to know if the employee will be absent for several days but not to know if they have a serious illness like cancer or suffer from depression.

4) Accommodate

Is there a way that the employee could come in for the day if you were able to offer them frequent breaks or an hour's sleep?

5) Call their bluff

If an employee's excuse doesn't add up or is not sufficient to warrant a day-off, call them in. "There's always the option of heading off lost productivity due to sick day sabotage before it starts," added Rabinovitch. "Employers can poll staff to see how many want the extra day off and set up a plan to work back the lost time. That way everyone can have a great Victoria Day weekend."

About Devry Smith Frank LLP:

Devry Smith Frank LLP (DSF) is Toronto's largest law firm outside of the downtown core. Since 1964, DSF has been a trusted advisor and advocate for corporations, individuals and small businesses. DSF is a dedicated group of over 50 lawyers, offering a broad range of legal services to our individual, business and corporate clients. We are driven by delivering value to our clients in all that we do. DSF's clients are corporations, institutions and individuals who come from all industries and walks of life including: insurance companies, banks, amusement park designers, printers, doctors, dentists, plumbers, lawyers, assembly line workers, photographers, and many, many more.

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