AUGUST 2014 BCBusiness 21 peTe ryAn
intel
B
efore discussing stress leave in
the workplace, it's important
to note that, legally speaking,
there's no such thing. Christian
Codrington, B.C. Human
Resources Management Association
senior manager, and Kelly Slade-
Kerr, lawyer with Hamilton Howell
Bain & Gould Employment Lawyers,
both maintain that "sick leave" is the
proper—and only—term that should
be used to describe the type of leave
that employees seek when they are not
mentally fit to work. "By calling things
'stress leave,' I think we devalue it or
make it really convenient for people
to say, 'Well, things are tough, I need
some time away,'" says Codrington.
Under the law, they say, a person who
is stressed out is not entitled to any
legal protection.
Claiming sick leave requires a note
from a physician with a diagnosis for
a mental illness, which can include
depression symptoms resulting from
the grieving process or a traumatic
life event. "A divorce is a perfect
example," says Slade-Kerr. "It would
be very rare for someone who is
suffering the effects of a divorce—to
the extent that they can't work—for
them not to be diagnosed with some
kind of condition." Although dealing
with heightened stress in and out of
the workplace is not cause to claim
leave, a diagnosable mental illness
arising from those stressors is.
Slade-Kerr says employers are at
risk of being on the wrong side of the
law when they make assumptions
about an employee's sick leave. She
often deals with wrongful dismissal
cases that result from employees being
terminated for unrelated causes, such
as downsizing, upon their sick-leave
return. In her 15 years of practising law,
Slade-Kerr estimates seeing maybe one
case where the employee appeared
to be abusing the system: "Employers
should always come from the
perspective that the illness is legitimate,
because that's going to keep you out of
trouble at the end of the day."
The
BCHRMA's Codrington adds that
employers should not be concerned
with policing for the tiny percentage
of employees who take advantage of
the system, but rather they should
demonstrate trust and encourage
open dialogue. "Be careful not to
manage by exceptions," he advises.
It is also incumbent upon employees
to be open with employers about any
I t ' s y o u r
B u s I n e s s
Stressing
the Small
Stuff
Navigating the legal waters
of so-called "stress leave"
by Kristen Hilderman
H u m a n R e s o u R c e s
08/14
y
2 2 v i s u a l l e a R n i n g
24 o f f i c e s pa c e
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