Human Rights Tribunal scrutinizes medical note in allegation of discrimination on the basis of disability

August 28, 2012 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Human Resources, Human Rights

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Human Resources practitioners are constantly confronted with medical notes from employees that do not provide any meaningful medical information (i.e. Bob is off work for 2 weeks because he is under doctor’s care). In addition, some employees who are disciplined or terminated after submitting such vague medical notes will file human rights complaints alleging employment discrimination on the basis of a disability. Recently, the Ontario Human Rights Tribunal had a chance to comment on these issues in the case of Shearer v. The Royal Canadian Legion, 2012 HRTO 44 (CanLII).

In this case, the employer had decided in June to terminate the employee because of budgetary reasons and poor performance. The employee was becoming anxious about the situation and before the employer had a chance to follow through and terminate his employment, the employee visited the emergency department of his local hospital and obtained a doctor’s note that prescribed three to five days off work for “medical reasons … pending further assessment by his family doctor”.

The employer proceeded to terminate the employee and the employee filed a human rights complaint alleging his termination constituted discrimination on the basis of a disability.

The Tribunal dismissed the case because it had no reasonable prospect of success. Specifically, the Tribunal held:

The interpersonal difficulties experienced by the employee pre-dated the medical note
The decision to terminate the employee pre-dated the medical note
The medical note submitted by the employee did not support a disability. Rather, it was simply the employee self-reporting that he was stressed with no objective evidence that he had a chronic condition or that this condition factored into the reason to terminate his employment
Temporary illnesses are not always considered disabilities under the Human Rights Code

The case was ultimately dismissed because the employee could not prove any connection between his termination and his alleged disability.

This case also highlights the need for employers and human resource practitioners to demand more detailed medical information when the supplied documentation appears incomplete (i.e. Bob is off work for 2 weeks because he is under doctor’s care). In cases where the medical information is unspecified, employees should:

Talk to the employee to obtain more information
Request consent to ask the employees attending doctor to clarify the information
Provide specific questions for the doctor to answer
Request an independent medical examination (if permitted)
Set clearly defined time-frames for the exchange of medical information

Simon Heath
Principal of Heath Law, Employment Lawyers

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Simon Heath, BA, MIR, LLB, Heath Law

Employment Lawyer and principal at Heath Law, Employment Lawyers

Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more