Mar 28

Mar 28 Don’t You Forget About Me – The Importance of Regular Communications with Absent Employees

2025 marks the 40th anniversary The Breakfast Club. This iconic film tells the story of a rag-tag group of five high school students from different “cliques” who form unexpected bonds during Saturday detention in the school library. Despite the film’s success and its memorable cast, it’s the soundtrack that many think of first when the movie is mentioned- particularly the song that frames the movie in the opening and ending credits: Don’t You (Forget About Me). (I pause here while you close your eyes and punch your first into the air over your head while you hear the song playing in your head – you know who you are.)

The song’s title and chorus asks listeners not to forget about the singer, and you remember their friendship. However, a closer look at the lyrics reveals a deeper plea for connection, as seen in the first line: “Won’t you come see about me?” and the final verse of the song:

Come on, call my name.

Will you call my name?

This 40-year-old song resonates with both today’s teenagers and those of us that were teenagers in the 80’s, emphasizing the importance of remembering and checking in on those who are absent. After four decades, this message remains vital, especially for employers with employees away from work on a leave of absence.

When an employee is away from work on a leave of absence, and regardless of whether the leave is for as little as a few days, or as long as several years, the importance of regular communication seems to be taken for granted. But thinking you don’t have to reach out unless and until the employee tells you they are ready to come back is something employers do at their own peril.

Why check in on your employees who are away on a leave of absence?

Employees may be away from work for a variety of reasons, but I want to focus on employees who are away on statutory leave of absence; that is a leave under the ESA, for a work-related injury or illness under the WSIA, or for a leave based on a protected ground under the Human Rights Code (including medical leaves).

Particularly in the case of longer-term leaves, it can often be the case that the employer will lose track of the employee. It may be that a manager or the company’s HR representative with knowledge of the employee’s time with the company has moved on in the interim, or simply that the passage of time is such that the employee is out of sight, and out of mind. In the meantime, the person on leave remains an employee of the company; continues to participate in the employer’s group benefits plans; continues to accrue service and, where applicable, seniority; and, most importantly in the case of a statutorily-protected leave, entitled to return to work in their pre-leave or other comparable position when and as they are able. All good reasons to stay in touch, but this final consideration is perhaps the key reason why employers should ensure they are in regular communication with all employees who are on a leave of absence, regardless of the reason or nature of their leave.

It’s not just a good idea; in some cases, it’s an obligation.

It’s important to note that staying in contact with the employee is, in some cases, the employer’s obligation, and not something that they can or ought to pass off to another party. Communication obligations are set out by the Ontario Human Rights Tribunal (the “HRTO”) and the WSIB for leaves falling within those regimes.

For example, employers should not take the position that their STD/LTD insurer or the WSIB will be in communication with the absent employee and keep the employer up to date with everything they need to know.

In the Duty to Accommodate provisions of the HRTO’s Policy on Ableism and Discrimination Based on Disability. Relying on caselaw, the Tribunal’s states as follows when discussing the “Duties and responsibilities in the accommodation process”:

“The accommodation provider is to … communicate regularly and effectively with the person, providing updates on the status of the accommodation and planned next steps.”

Likewise, where an employee is away from work as a result of a work-related injury or illness, the WSIB includes the following amongst the employer’s return-to-work responsibilities – some of which necessitate communication prior to the actual return to work:

“Get in touch with your employee as soon as possible after the injury or illness.”
“Stay in touch with your employee throughout their recovery and return to work.”
“Offer to re-employ your employee if he or she can perform the essential duties of the pre-injury job or other suitable work.”[i]

Therefore, employers can’t, and shouldn’t, rely on updates from their STD/LTD insurer or the WSIB (depending on the circumstances) about their communications with the employee. Instead, they should ensure they comply with their obligations through direct contact and communications with the employee who is away from work.

What should you communicate about?

While an employee is away from work, the employer should ensure they are in regular contact with their employee to ensure the following information is up to date:

The employee’s current address, phone number, e-mail and contact information.

This information is required not only for communicating about return-to-work opportunities and notifying the employee of any changes that may happen at the workplace during their leave, but to ensure the employer’s records are up to date for delivery of T4s and other tax forms.

The employee’s status, including updated medical information regarding any physical or functional restrictions or limitations they may have.

The employer requires up-to-date information from the employee to comply with their accommodation obligations under the Human Rights Code, and their return-to-work obligations under the Workplace Safety and Insurance Act (where applicable). This information will assist the employer in determining what accommodation or modified work is appropriate and available. Depending on the circumstances, this information might also result in a determination that there has been a frustration of contract, bringing the employee’s employment to an end. But the employer cannot make these assessments in a vacuum.

The employee’s anticipated return to work date.

This is needed for workforce management, determining any re-training, and re-onboarding requirements.

How to do it?

There is no set template checklist setting out the series or steps to manage employees away on a leave of absence. Instead, here are best practices for employers:

When an employee begins a leave of absence, write to them immediately to confirm the start date of their leave, the anticipated length of the leave (if known), and their anticipated return to work date (again, if known). Where applicable, include information about any STD/LTD or EI sickness benefits the employee may be entitled to. If the employee has company equipment or property that needs to be returned, make arrangements for its return pending the employee’s return to work. Finally, if the leave is going to be longer than 5 days, confirm with the employee that their ROE will be filed with Service Canada.
Where the employee is on a longer-term absence, diarize dates in your calendar to reach out the employee to check in and request updates on their status. Where appropriate, request updated medical documentation to support their ongoing absence. The timing of these follow-ups will be different for each employee and dependent on the nature of their leave, the documentation you already have in your possession about the length of their absence, and any information you may have from the employee’s doctor about the date of their next assessment.
Document all communications, and efforts to communicate, with the employee. A chronology or spreadsheet of your communications (calls, text messages, e-mails, and letters) that you can regularly update will keep you on top of the matter and minimize you looking for information later.
If you have issues, or if the employee does not respond despite all your efforts and different ways of trying to reach them, reach out for help. This can include reaching out to WSIB (where applicable), or the employee’s emergency contact (careful to maintain confidentiality and simply advising you are trying to get a hold of the employee).

Finally, “don’t forget about me”…. and by me, I mean myself and my colleagues at Piccolo Heath LLP. Employers with questions about the leave of absence process, managing an employee’s leave, their accommodation obligations, or the responses they receive from their employee, can and should reach out to legal counsel. We won’t walk away or walk on by.

Now sing, la, la la la la, la la la la, la la la la la la la la la la…

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[i] The WSIB’s return-to-work responsibilities also include the following amongst the employee’s obligations:

“Get in touch with your employer after your first health-care treatment to begin talking about your return to work;” and
“Stay in contact with your employer throughout your recovery and provide them with information on your progress. Try to touch base regularly and keep a record of when you contact your employer.”