Summer is the season of absenteeism. Employers who ignore that reality pay the price

Every sum­mer, busi­nesses brace for the pre­dict­able. Vaca­tion sched­ules fill up, staff­ing becomes tighter and pro­ductiv­ity dips.

No less com­mon is the employee who extends that sum­mer break with a con­veni­ently timed med­ical leave or by turn­ing remote work into something more akin to a paid vaca­tion.

Most employ­ees are hon­est. Many are not. And employ­ers who pre­tend oth­er­wise dis­cover, often too late, that good inten­tions are no sub­sti­tute for good man­age­ment.

The legal chal­lenges are obvi­ous. Ques­tion an employee’s med­ical leave too aggress­ively and an employer risks alleg­a­tions of dis­crim­in­a­tion or a fail­ure to accom­mod­ate. Accept every request without scru­tiny and the busi­ness may spend months oper­at­ing short-handed while co-work­ers resent­fully pick up the slack, usu­ally know­ing well that their col­league is not actu­ally dis­abled but simply elong­at­ing their sum­mer vaca­tion.

For­tu­nately, the law does not require employ­ers to be either cyn­ical or naive.

An employee has every right to take legit­im­ate med­ical leave. But employ­ment law has never said that feel­ing bet­ter at the cot­tage than at the office makes someone med­ic­ally incap­able of work­ing. The legal test is whether the employee can per­form the essen­tial duties of the job, not whether they don’t feel their best or would rather be some­where else.

One of the cost­li­est mis­takes employ­ers make is treat­ing every doc­tor’s note as though it ends the con­ver­sa­tion.

A note say­ing an employee is “off work until Labour Day” may jus­tify fur­ther ques­tions, not only because the employer may sus­pect dis­hon­esty, but because they have both the right and the legal oblig­a­tion to under­stand the employee’s func­tional lim­it­a­tions before determ­in­ing whether leave or an accom­mod­a­tion is appro­pri­ate.

That is pre­cisely why Func­tional Abil­it­ies Forms are so valu­able. They require phys­i­cians to identify what the employee can and can­not do, rather than simply declar­ing that the employee should remain off work. Phys­i­cians are under­stand­ably more care­ful when asked to jus­tify restric­tions they may later need to defend.

Then there is the newer phe­nomenon: the work-from­home “stayc­a­tion.”

Remote work has become an indis­pens­able recruit­ing and reten­tion tool. It has also become an oppor­tun­ity for some to work from the beach, the golf course or another coun­try without their employer’s know­ledge — or, in too many cases, without doing much work at all.

Tech­no­logy has made remote work easier. It has also made time theft easier.

The answer is not intrus­ive sur­veil­lance. It is com­pet­ent man­age­ment.

Employ­ers should estab­lish clear expect­a­tions regard­ing avail­ab­il­ity, respons­ive­ness, work­ing hours, per­form­ance stand­ards, travel out­side the jur­is­dic­tion and occa­sions requir­ing in-per­son attend­ance. Employ­ees can­not be dis­cip­lined for viol­at­ing rules that were never com­mu­nic­ated.

Most employ­ees use sick leave respons­ibly. But employ­ment policies are not writ­ten for the major­ity who fol­low the rules. They exist to pro­tect employ­ers when a minor­ity do not.

Sum­mer absent­ee­ism is not a new phe­nomenon, nor is it likely to dis­ap­pear. Employ­ers who ask reas­on­able ques­tions, insist on appro­pri­ate med­ical inform­a­tion and enforce well-draf­ted remote work policies are not being sus­pi­cious. They are man­aging their busi­nesses respons­ibly.

Those who fail to do so should not be sur­prised if, come Labour Day, they find they have spent the sum­mer pay­ing employ­ees who were enjoy­ing it far more than they were.

Howard Levitt is senior part­ner of Levitt LLP, employ­ment and labour law­yers with offices in Ontario, Alberta and Brit­ish Columbia. He prac­tises employ­ment law in all provinces and is the author of six books, includ­ing The Law of Dis­missal in Canada. Jef­frey Vandespyker is an asso­ciate at Levitt LLP.