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February 2014 Newsletter

In this edition you will find:


 A. Feature Article: Ontario Medical Association Slams Employers’ Demands for Sick Notes: What Can Employers Request?

Flu season is upon us, and the Ontario Medical Association has made its views known. According to a news release issued in January, the requirement for sick leave certificates is a waste of time and money. It fills doctor’s offices with people that are ill. The requirement should be abolished.

The Association’s comments have created a “tempest in a teapot.” The reality is that most employers are fairly judicious when seeking such certificates. Generally speaking, such notes are primarily requested when the employee exhibits a pattern of absenteeism that raises questions about her health or her commitment to the workplace. Notes to substantiate every absence will only be justified where the employee’s history of intermittent absenteeism has become exceedingly problematic.

Guidelines from Provincial Colleges of Physicians and Surgeons

The various governing bodies recognize that employers have a legitimate need for medical certificates. For instance, the Manitoba College of Physicians and Surgeons states that sickness certificates may include an employee’s prognosis relative to the work situation, activity and ability limits and risk factors to the patient and others. Any statement or disclosure must be accurate. The College’s policy contains a suggested sickness certificate that can be used where a simple sickness certificate is required for a minor illness. The Professional Standards and Guidelines of the British Columbia College of Physicians and Surgeons stipulate that doctors must provide timely medical reports that are clear, factual and based upon objective clinical information rather than the patient’s reported ailments. In Ontario, the College obligates treating physicians to provide medical reports about their patients when proper consent is provided. Such reports must be comprehensive, accurate and objective.

Canadian Medical Association Guidelines

The Canadian Medical Association acknowledges that its members have a significant role to play when employees are returning to work following an illness or injury. By way of example, its policy entitled “The Physician’s Role in Helping Patients Return to Work After an Illness or Injury” sets forth the treating physician’s obligations. These include:

  • The physician should incorporate a timely evidence-based return to work into the care plan for their patients
  • Ultimately, the employer determines the type of work available and whether a physician’s recommendations concerning an employee’s return to work can be accommodated.
  • When requested by the employer, the physician, with the patient’s consent, should be as specific as possible in describing the patient’s work capabilities and any work accommodation required.
  • If the employer asks the physician to participate in developing a modified work plan, the physician should consider and make recommendations that set forth the employee’s specific task limitations, suggested schedule modifications, environmental restrictions and required medical aids or personal protective equipment. Wherever possible, the physician should state whether restrictions are permanent or temporary and give an estimate of recovery time. The physician should also advise of the date when the patient’s progress and his or her work restrictions will be re-assessed.
  • The physician must consider the risks to the patient, co-workers or the public possibly arising from the patient’s condition or drug therapy. Where necessary, the physician must put the public interest before that of the patient.
  • With patient consent, an employer should be provided with medical information that the employer needs to know to assist the employee in his or her return to work. By way of example, this would include the ability of the employee to perform pre-injury duties, the employee’s capabilities and limitations and the extent to which the work or workplace needs to be accommodated to meet the needs of the employee.

Physicians are not the Gatekeepers of Disclosure

Privacy is an important consideration in matters of disclosure, and a medical report must not transcend the parameters of the patient’s consent. But it is not up to the physician to determine the limits of disclosure. If the requested information falls within the scope of the patient’s consent, then that information should be addressed in the physician’s medical report. If the employee refuses to consent, then the propriety of the employer’s request is a matter to be determined by arbitration.

What Can an Employer Do If an Employee Refuses to Consent?

An employer will only be able to discipline an employee for refusing to provide reasonably required medical information if the employer’s request is justified by either a statutory requirement or an explicit requirement in a collective agreement (or individual contract of employment). While discipline is not appropriate in the absence of those requirements, the employee may nevertheless have to suffer the consequences of her refusal. This could include loss of sick pay or a justified refusal to permit the employee to return to work where such information is necessary to consider her return. On the other hand, if the employee either refuses an unreasonable request for medical information, or refuses to sign an inappropriate medical release, then any lost wages attributable to either are likely to be the responsibility of the employer.

What is an Employer Entitled to in a Medical Report

In the absence of a limiting provision in a statute or collective agreement, an employer is entitled to receive, at a minimum, a statement as to the nature of an employee’s illness, the prognosis, if any, and the length of the employee’s expected absence. The information should be sufficient to establish the legitimacy of that absence. Unless the collective agreement provides otherwise, a simple doctor’s statement that the employee was ill and unable to work will normally be considered to be insufficient. Where appropriate, the employer can challenge or seek to clarify the medical certificate. Significantly more information may be compellable when addressing matters such as recovery or accommodation.  

Concluding Comments

The policies and guidelines of the Canadian Medical Association and the provincial Colleges of Physicians and Surgeons can be found on their respective websites. While they are not determinative of the scope of disclosure, they do provide a useful resource for both employers and unions.

The foregoing issues are dealt with in much greater depth in the Illness and Absenteeism manual. See for instance section 4:203 (Refusal to Consent to Provision of a Medical Report); section 7:600 (Contents of Medical Reports); and section 7:700 (Challenging Medical Reports).

B. Recent Decisions of General Interest

1. Damages were awarded where the employer failed to fulfill both the procedural and substantive components of the duty to accommodate.

In University of Waterloo, 2013 HRTO 1161 (CanLII) (Whist), the employee alleged that the employer had contributed to a further injury of her knee by failing to follow the medical restrictions imposed upon her return to work. In upholding the grievance, the adjudicator stated:

The Supreme Court of Canada has accepted that the duty to accommodate has both a procedural and a substantive component … The procedural component requires that the respondent employer take steps to understand the employee’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address those needs. The substantive component of the analysis considers the reasonableness of the accommodation offered or the respondent’s reasons for not providing accommodation. It is the respondent who bears the onus of demonstrating what considerations, assessments and steps were undertaken to accommodate the employee to the point of undue hardship …  

The adjudicator concluded that the employer’s failure to investigate, consult and assess the employee’s needs constituted a breach of it procedural obligations:

My determination that the respondent has failed to meet its procedural duty to accommodate is based on a number of actions taken (and not taken) by the respondent. To begin, the decision as to what accommodation should be provided for the applicant was unilaterally determined by [her shift supervisor]. I see no evidence of an investigation or assessment of the accommodation measures needed to meet the applicant’s identified medical restriction. It appears [the shift supervisor] failed to seek input from the respondent’s Disability Co-ordinator or the applicant’s front line supervisors. Importantly, there was no effort to seek input from the applicant about the proposed accommodation or to confer with the applicant in any manner.

Furthermore, [the foreman and the lead hand] the two persons with direct responsibility for directing the applicant’s work testified they were completely unaware that the applicant’s medical restriction was walking short distances only, that they only knew that the plan was to accommodate the applicant by allowing her to take as many breaks as she wished. In my view, this lack of knowledge arising from a failure to communicate also affected the implementation of the respondent’s accommodation plan. It compromised [their] ability to manage the applicant’s accommodation and respond to the applicant’s accommodation needs over the course of her return to work …

… The procedural component of the respondent’s duty to accommodate requires it to involve the applicant in the accommodation process …

… The onus was on the respondent to offer reasonable accommodation with input from the applicant and based on the applicant’s medical restriction at the outset of her return to work. It did not do so. It should have provided clearer direction to the applicant and others about what to do if there were issues with the implementation of an agreed to accommodation plan for the applicant. The respondent did not do this. It is this initial failure that constitutes the respondent’s failure to provide reasonable accommodation.

The adjudicator awarded $5000.00 as damages for injury to dignity, feelings and self-respect. In doing so he distinguished the circumstances from those where the employee had lost her employment:

The Tribunal has issued a number of decisions that involve a respondent failing to accommodate an applicant for a short period of time and in which the Tribunal has awarded compensation for injury to dignity, feelings and self-respect … These cases involve awards ranging from $1,000 to $6,000 … Having considered all the circumstances I find that $5,000 is an appropriate amount for compensation for injury to dignity, feelings and self-respect.

Issues related to an employer’s failure to consult with the employee when exploring possible accommodation are considered in section 14:601 of the Illness and Absenteeism manual, commencing at page 627 of the manual. The issue of damages for failure to accommodate is addressed in section 14:700, commencing at page 693 of the manual.

2. The termination of a non-unionized employee was upheld where the adjudicator characterized the termination as having been attributable to the employee’s failure to properly report his absences as opposed to having been attributable to a disability that caused him to be frequently absent from work.

 In Deputy Head (Canada Border Services Agency), 2013 PSLRB 67 (CanLII) (Paquet), the employee suffered from chronic anxiety disorder, and his child suffered from serious health and behavioural issues. The employer had been informed of these circumstances.

The employee had been employed in the federal civil service for over 20 years. During the last year of his employment, the employee`s absenteeism rate increased from 40 to 60%. In the year prior to his termination, the employer directed the employee that if he was to be absent, he was to contact his manager by phone before 9:00 to provide an explanation for his inability to report for work. He was advised that an email would not be sufficient and would result in his absence being considered to be unauthorized. He was also directed to provide a medical certificate for each absence resulting from an illness of either him or of a family member. The employer informed him that non-compliance with those directives would be treated as disciplinary infractions. During the months that followed, the employer imposed a 2-day suspension, a 3-day suspension, a 10-day suspension, and finally a 20-day suspension, all for having violated the reporting procedures. The employee was warned after the 10 and 20-day suspensions that he could be terminated if he did not correct his behavior.

The employee only worked six of the 26 working days between the end of the 20 day suspension and his subsequent termination. During that time, he violated the reporting procedures on five occasions.

The adjudicator stated

It is important to point out that the grievor was not terminated because of the frequency of his absences from work. Rather, he was terminated because he allegedly failed to respect the procedure to report his absences from work. Absolutely no evidence was adduced that the grievor asked to be accommodated in how he could report his absences from work because of his health condition or of his child`s situation. Nor was there any argument that the employer refused any suggestions made by the grievor in that respect …

The employee admitted to his wrongdoing, including having blamed several absences on his child when such was not the case. He testified that he regretted his actions, and that since his termination, he had been managing his illness and had not missed work with his new employer. In upholding the employee’s termination, the adjudicator stated

I believe the grievor is sincere in admitting his wrongdoing but he could have done so after each disciplinary action imposed upon him, and then corrected his behavior, which he did not do. Furthermore, even though the grievor admitted his wrong doings, the fact remains that he is culpable of misconduct. He even lied to the employer on multiple occasions, using his child`s situation as an excuse for not going to work. Also, I must add that, even though the grievor was a competent employee, the employer could not trust that he would be at work on any given day.

The issue of culpable absenteeism, including an employee’s failure to report an intended absence, is addressed in section 17:200 of the Illness and Absenteeism manual, commencing at page 812 of the manual.

3. The termination of an employee who refused to respond to legitimate employer requests for medical information was upheld on an administrative rather than a disciplinary basis.   

In Deputy Head (Department of Public Works and Government Services), 2013 PSLRB 65 (CanLII) (Paquet), an absent employee consistently refused to complete required leave forms or to provide medical information to justify her absence. She was given many clear and explicit warnings that her failure to do so would result in the administrative termination of her employment. Arbitrator Paquet concluded that the employee had abandoned her employment, and that “after an absence of 17 months from the workplace with no detailed medical evidence [other than that initially submitted], it was legitimate for the employer to terminate her employment” when it did.

Termination for non-culpable absenteeism is considered in section 17:300 of the Illness and Absenteeism manual, commencing at page 840 of the manual.

4. The termination of a disabled employee was upheld where the employee refused to cooperate in implementing an appropriate accommodation.

In Centres for Early Learning, 2013 HRTO 1976 (CanLII) (Kershaw), the employee, who had  sought a medical leave, was instructed to obtain a doctor’s note “that would detail how long she would be off work, what treatment she would be receiving and how long she would be able to stand.”

The employer sought clarification of the doctor’s advice. This led to a number of reports, with one stating that the employee would be reassessed and the other advising that she could now return to work on modified duties.

On the date that the employee was cleared to return to modified duties, she called the employer to advise that her doctor had told her that she could no longer perform her former duties. The employer instructed the employee to obtain a letter from her doctor explaining what restrictions/modified duties she required. The employer reiterated its request in writing some two weeks later.

Following an ongoing exchange, the employee advised that she would not return to work until she received clarification on the modified work and an answer as to who would take responsibility for her workplace injury. After a further period of absence, and after further attempts to explain the modified duties, the employer wrote to the employee to advise that if she did not provide the required medical note, her employment would be in jeopardy. After two further letters of this nature, the employer terminated the employee’s employment. By that point, she had been off work for approximately eight months.

The adjudicator found that the employer had attempted to accommodate the employee, but that it was severely hampered in that process, in that the employee had remained off work, failed to provide any meaningful medical documentation, and then when she finally did, she refused to attempt accommodated work when it was offered to her. The fact that the employee purported to fear a return to work because it might possibly exacerbate her condition did not relieve her of the obligation to participate in the accommodation process.

… although the applicant clearly felt that what was proposed was not acceptable, her subjective feelings are insufficient to prove discrimination. She made almost no attempt to substantiate her requests with medical documentation and was generally uncooperative in the return to modified work process. [The employer] put forward suggestions on how it would accommodate her in the workplace and she refused even to try. She had no evidence to support her concerns and she was given multiple opportunities to provide it. The [earlier] evidence from her doctor was that she had no restrictions except for lifting and even then that restriction was expected to be lifted.

The adjudicator concluded that the employee’s “termination did not breach the Code because it was related to her intransigence and not her disability.”

The employee’s obligation to assist in effecting an appropriate accommodation is considered in section 14:432 of the Illness and Absenteeism manual, commencing at page 573 of the manual.

5. An employer was relieved of the need to accommodate a disabled employee in a non-established position after the employee’s disability was deemed to be permanent.

 In Coca-Cola Refreshments Canada Company, 2013 CanLII 62015 (ON LA) (Hayes), the employee suffered a serious workplace injury that was later determined to be permanent. It prevented the employee from operating delivery vehicles and forklift equipment and precluded him from lifting or carrying weights of more than 20 pounds.

The employee, who had been accommodated as a driver assistant, continued to be paid as a driver. After approximately 15 months, the employer advised that it was no longer prepared to accommodate the employee in that position. He was then placed in the classification of General Help. The General Help classification was recognized under the collective agreement, whereas the Driver Assistant position was not.

The employee grieved. It was his position that he and the union understood that the initial accommodation was to have been permanent.

At the hearing, the employer testified that from time to time, the employer would assist “outside employees” who needed accommodation by providing them temporary access to a created Driver Assistant position. This permitted the accommodated employee to remain on the “outside” seniority list. The employer had “no business need for such a position … The Driver Assistant position contributes nothing of value …”

It was the employer’s evidence that it had never intended to make the initial accommodation permanent. None of the WSIB documents tendered at the hearing confirmed that the initial accommodation was to be permanent. By contrast, the employee’s subsequent placement on the General Help classification was noted as permanent in the WSIB material.

The arbitrator concluded that the employer had no need for a permanent Driver Assistant position. He stated that had there been a need, one would expect that such classification would be found in the collective agreement. He concluded that the employer had “created marginal Driver Assistant work from time to time to accommodate disabled workers in the past on a temporary basis. If this be the situation, the company should be credited for such conduct, not criticized for failing to maintain it.”

There was no need for the employer to have created a position to accommodate the employee. The employer had satisfied its legal obligation by accommodating the employee in the General Help classification.

Differences in an employer’s obligation to accommodate an employee, depending on whether the disability is temporary or permanent, are considered in section 14:470 of the Illness and Absenteeism manual, commencing at page 591 of the manual.

6. In two recent decisions, an unnecessary delay in accommodating a disabled employee resulted in the employer having to either compensate the employee for lost earnings or pay general damages for such delay.

In Sobey’s Inc., 2013 CanLII 57243 (ON LA) (Parmar), the arbitrator considered the issue of inordinate delay in returning an injured employee to the workplace, and then to her regular job duties.

On the occasion of her initial return, the employee provided medical reports from her family doctor stating that she could return to work with restrictions. The employer was concerned that the reports were inconsistent with an Independent Medical Examination conducted approximately five months earlier. The more recent documents suggested that the employee’s condition was actually worse than it had been when the IME was conducted. The arbitrator concluded that it was appropriate for the employer to have sought further clarification in such circumstances. With the assistance of an ergonomist, the employer identified a position that appeared to meet the employee’s medical restrictions, and then wrote to the employee’s doctor and physiotherapist asking for confirmation that the duties would be suitable for the employee. The arbitrator found that the employer’s actions were reasonable. The eight day delay between receipt of the ergonomic report and the sending of the letters seeking clarification from the doctor and physiotherapist was found to be reasonable.

Sometime later, the employee presented a medical note from her family doctor stating that she could now return to her regular duties. The employer immediately requested that the employee’s doctor and physiotherapist complete a Functional Abilities Evaluation after considering the physical demands of the employee’s regular position. Both evaluations were returned to the employer within one week of receipt of the doctor’s note. At that point, the employer sought an opinion by a physician of its own choosing by way of a “paper review”. The employee was returned to her regular duties four weeks after the Functional Abilities Evaluations had been received by the employer.

The arbitrator agreed that it was appropriate in the circumstances for the employer to obtain further information from the employee’s doctor and physiotherapist, rather than simply having to rely on the employee’s medical note. However, following receipt of the Functional Abilities Evaluations, the only discrepancy between the two evaluations related to the employee’s ability to climb ladders. Given that climbing was not part of the employee’s regular job, “there was no reasonable justification for the Employer to conclude it did not have sufficient medical information to return the Grievor to work in a safe and appropriate manner.” Any delay after receipt of the two evaluations was unreasonable and was the responsibility of the employer.

In Toronto District School Board, 2013 CanLII 67042 (ON LA) (Nairn), a teacher had been placed on sick leave because of performance concerns arising from his psychiatric illnesses. The employee was found to have been suffering from obsessive compulsive disorder and periodic episodes of major depressive order. The arbitrator noted that both were recognized as psychiatric disorders in the DSM-IV, and that both had impacted on his ability to attend at work on a regular basis.

After having been absent for approximately three months, the employee provided a letter from his doctor stating that he could return following the school’s Christmas break. Shortly thereafter, the employee’s psychiatrist provided a letter suggesting that the employee would require accommodation on his return. Rather than request further information clarifying that suggestion, the employer directed that the employee undergo an Independent Medical Examination pursuant to the provisions of the collective agreement. The report of the IME, which was conducted approximately five months later, stated that the employee was not then fit to return to work, and that he should be examined two months later (i.e. approximately at the commencement of the subsequent fall term.) The employee was paid pending the conduct of and assessment of the results of that examination.

The employee remained off work, on sick leave, and ultimately suffered a “set-back.” After some time, he returned to work three days a week at half time.

The arbitrator found that although the employer was entitled to request the IME, it should have sought clarification from the employee’s psychiatrist regarding his suggestion that accommodation would be required. The employer’s failure to follow-up “resulted in a failure to accommodate the grievor in a timely manner, contrary to the provisions of the Code.” She awarded general damages of $ 4500.00, and directed the parties to attempt to resolve issues related to other losses incurred with respect to the five month period.

The issue of damages for failing to accommodate is addressed in section 14:700 of the Illness and Absenteeism manual, commencing at page 693 of the manual.


Subscriber-Only Manual Supplement for February

The February update of the Manual Supplement has now been posted on line. The 180 page Supplement is available only to subscribers of the Illness and Absenteeism Manual. It can be accessed at IllnessandAbsenteeism.com using the reference and password that has been assigned to each subscriber.

Speaking Engagements

On January 24, 2014, Denny participated in the Labour Law and Employment session of the Manitoba Bar Association’s Midwinter conference. His remarks addressed the role of the medical profession in providing evidence of employee illness.