An employee must be credited with three months of uninterrupted service to take advantage of section 79.1, and the absence shall be without pay. In addition, the employee must advise the employer as soon as possible of a period of absence from work, giving the reasons for it. If it is warranted by the duration of the absence or its repetitive nature, for instance, the employer may request that the employee furnish a document attesting to those reasons.
During a period of absence under the second paragraph of section 79.1, the employee may return to work intermittently or on a part-time basis if the employer consents to it.
2002, c. 80, s. 27; 2007, c. 36, s. 7.
An employee credited with three months of uninterrupted service is entitled to be absent without pay owing to sickness, organ or tissue donation for transplant, accident or a serious bodily injury suffered due to a criminal offence.
The employee must also notify his employer of his condition as soon as he is able to do so. However, when reference is made to "as soon as possible", one must take into account the employee’s situation and the particular circumstances of each case. Indeed, it could be that the employee is unable to inform his employer immediately, for example in the hypothetical case where he were to be in an accident and owing to this fact would be prevented from contacting his employer.
In addition, the employee must inform his employer of the reasons that specify the nature of the absence, namely if it is a sickness, an accident or a serious bodily injury due to a criminal offence. It is not necessary that these reasons be in writing; they will generally be given to the employer verbally.
Moreover, if the circumstances so warrant, the employer may ask that the employee provide a document justifying this absence. For example, mention may be made of a medical certificate, a police report, etc. Hence, it is up to the employer to show that the circumstances of the absence authorized him to ask the employee for a document attesting to the reasons for the absence.
It is important to note that the employer who requests further details must take into account the limitations imposed by the obligation to respect the employee’s private life.
Indeed, an employee’s state of health and his medical records are part of his private life. Respect for a person’s private life is protected by the charters and several statutes, notably the Charter of Human Rights and Freedoms and the rights of youth (R.S.Q., c. C-12, s. 4, 5 and 9), the Canadian Charter of Rights and Freedoms, (Constitution Act, 1982, Part 1), the Civil Code of Québec (S.Q., 1991, c. 64, art. 3, 35 and 41), the Act respecting the protection of personal information in the private sector (R.S.Q., c. P-39, s. 5 and the Act respecting occupational health and safety (R.S.Q., c. S-2.1, s. 51).
As for the maximum absence of 104 weeks stipulated in the second paragraph of section 79.1 (serious bodily injury suffered by the employee due to a criminal offence), the employee, may, as the case may be and with his employer’s consent, resume his work, either on a part-time or intermittent basis.