The subject of stress leave may itself be fairly said to induce stress among HR personnel. The reason is the amount of interpretation built in to stress-leave claims, starting with the apparent fact that such leaves are not listed and described statutorily for HR (Statutes and Regulations). We know that stress leaves are typically granted by employees’ doctors. We know that as of November of 2011, a decision was reportedly going to be made by the provincial government to broaden mental stress-benefits for workers in excess of the current national policy of covering only “acute reaction to a sudden and traumatic event” (“Safety Lives”). But we also know that as of April of 2012, that legislation had not passed and was looking less likely to do so (Smithson). But, at least in this case, much of the dirty work already has been done for us: the employee has in fact been granted stress-leave and is at home. But we may never know why.
Although it is HR’s right to inquire as to whether a graduated return is actually necessary, doing so requires care: HR cannot demand the employee’s actual reason for the leave. That diagnosis is privileged information between her and her doctor. Violating that right may lead to a charge of discrimination, especially if the stress turns out to be the product of mental illness (Tebbutt). But it is also true that her employer is not required to change her job duties in response to that leave. If she had an upcoming performance review when she took the leave (a common and stigmatizing pattern), then the terms of that review will not be changed to accommodate that leave. In other words, if she was a poor employee, her leave will not grant her an escape from the consequences of being a poor employee. Even if she was going to be fired before the leave, she must still be fired upon return. By the same token, if she was going to get a raise or a promotion, they may not be arbitrarily denied or delayed because of the leave.
We may assume that the leave is unpaid. We may also assume that this individual is not in management, because of her stated preference to return to work on a part-time basis. (A formerly salaried full-time manager is presumed to be ineligible for hourly part-time work as that category is typically understood, although such a manager could conceivably resume working both at home and on site if feasible, although not necessarily for the same compensation).
The employee certainly does have a right to return to work, and, depending on the medical nature of the stress-related illness, her return to work may be graduated. That is the point on which this case hinges. If HR cannot make an informed decision about the medical need for a graduated return, then there is no basis to deny her request. So as to the answer to my initial question How should HR respond?, the answer is simple: let her resume work on a part-time basis. But she must first provide a firm date on which she will resume work on a full-time basis. Let that be the catch.
“Employment Standards Act.” Statutes and Regulations. Province of British Columbia, 05 SEP 2012. Web. 23 Sep 2012.
Smithson, Robert. Getting Stress about Workers Compensation Amendments. Smithson Employment Law Corporation, 02 APR 2012. Web. 23 Sep 2012.
“Stress now covered by BC workers’ comp.” Safety Lives. The Canadian Press, 04 Nov 2011. Web. 23 Sep 2012.
Tebbutt, M.. “The Final Frontier in Workplace Health.” Here to Help. Visions: BC’s Mental Health and Addictions Journal, 2009. Web. 23 Sep 2012.