Focus on Employment | Labour - November 2010

Contents

The Importance of Obtaining Accurate Up‐to‐Date Medical Information When Dealing with Ill or Injured Employees One Strike and You're Out? Single Incident Just Cause The Price of Bullying in the Workplace: A Comment on the Ontario Court of Appeal's Decision in Piresferreira v. Ayotte B.C. Considers Reform of Workplace Dispute Adjudication The Importance of Obtaining Accurate Up‐to‐Date Medical Information When Dealing with Ill or Injured Employees By Adrian Elmslie

Employee absences from the workplace due to illness or disability can raise difficult issues for employers. While regular attendance at work is a legitimate expectation for an employer to have of their employees, this expectation must also be balanced with an employer's duty to accommodate disabled employees.

The legal options available to employers to address attendance problems related to illness generally depend on the nature of the illness. As a result, decisions regarding an employee who is absent from work due to illness or injury cannot be safely made without first obtaining and reviewing accurate up‐to‐date medical information.

Often times the medical information initially received by employers consists of a doctor's note explaining that the employee is unable to work for a specified time due to illness. While such a note may assure an employer that the employee's absence from work is legitimate, such notes are generally of little assistance when dealing with prolonged absences or more serious illnesses which require consideration of the employer's duty to accommodate, access to benefits and the end of the employment relationship through the contractual doctrine of frustration.

In order to make fully informed and good faith decisions regarding these more serious issues, employers need to take the initiative to gather sufficient medical information regarding the employee's condition. In fact, there is a legal expectation that employers take active measures to ascertain the extent of an employee's disability as part of the employer's duty to accommodate, and its overarching duty to act in good faith.

Generally, such information is gathered through the employee by way of a letter to the employee that contains the following:

confirmation that the employer is writing to seek information required to address the employee's alleged disability and possible return to work; confirmation that it is the employee's responsibility to facilitate the employer's access to this information; and a request for the employee's medical advisor to complete an attached questionnaire that is intended to provide the following information: details of the employee's functional limitations; scope of conflict between functional limitations and the employee's job duties, if any, based on a summary of duties provided by the employer; projected time limits for persistence of functional limitations; identification of any treatment needs or medication that will affect, in any way, the work responsibilities of the employee; and the prognosis and expected date of return to work in cases of total disability that cannot be accommodated. While the employer will generally take the initiative in gathering medical information, it should also be kept in mind that the employee also has a duty to cooperate and, accordingly, has an obligation to provide his or her employer with any relevant and necessary medical information that is requested.

Depending on the circumstances, failing to provide such information can be proper grounds for discipline and may relieve the employer of any further obligations toward the employee. However, a single refusal to provide information is generally not sufficient to allow an employer to abandon its responsibilities with respect to gathering information or taking reasonable steps to accommodate an employee. Nor would a single refusal to provide such information give an employer the ability to terminate an employee for cause.

Rather, in the event the employee and/or attending physician fails to co‐operate in the employer's effort to obtain information relevant to the assessment, the employer should again write the employee and/or doctor indicating that the employee is obligated to provide this information. The letter should also indicate that the failure to comply with this request may jeopardize the employee's right to accommodation, and may result in discipline up to and including dismissal for persistently refusing to provide the information required.

Once the information has been gathered, the employer can then assess the situation and takes steps to ensure it meets its operational requirement, while at the same time meeting its obligations to accommodate disabled employees. Such steps may include:

assessing whether the employee's illness or injury actually prevents the employee from carrying out his or her duties; exploring accommodation measures that might allow the employee to return to work; assessing the need to hire a temporary replacement for the disabled employee during his or her absence; and assessing whether the employee's state of disability is such that it has resulted in frustration of the employment contract. It is also important to remember that illnesses and disabilities can...