In Thompson v. 1552754 Ontario Inc., the applicant was employed as a counter person at the respondent’s coffee shop. The applicant alleged discrimination based on disability when her employer refused to allow her to return to work after a three day absence. The employer would not allow the applicant to return to work without providing it with specific medical clearance that she had returned to her “prior state” of health.
The issue before the Tribunal was whether the employer discriminated against the applicant in refusing to return her to work without the medical clearance that it demanded. The Tribunal found the employer’s refusal to employ the applicant until she supplied the medical documentation was unreasonable and constituted discrimination.
The applicant suffered from epilepsy. The employer was aware of her condition and had changed her shifts from midnights to afternoons at her request.
The applicant called in sick for three days in September. She contended that she was off work sick with the stomach flu. The employer argued that she was off work due to a worsening of her epilepsy condition. The employer argued that in a concern for her safety it advised that she would not be put back on the schedule until she returned to her “prior state” of health and was fit to return to work. The applicant provided the employer with a medical note providing that she had been off sick for medical reasons. The note did not address her epilepsy. She testified that her doctor would not write her a note guaranteeing that she would not have a seizure at work.
The Tribunal found that it was not unreasonable for the employer to request a medical note. However, it was not reasonable to request a medical note confirming that the applicant had returned to her “prior state” of health. The employer argued that it was concerned that the applicant’s hours of work had aggravated her disability. The medical documentation that the employer demanded had nothing to do with such a concern. The employer could have asked for medical information related to the applicant’s clearance to work irregular shifts or what hours of work would be safe for the applicant. The Tribunal found that the request for medical information had little to do with the employer’s alleged safety related concerns and was discriminatory.
The Tribunal awarded the applicant $12,500 in damages for injury to her dignity, feelings and self-respect. The Tribunal also awarded damages for lost wages up to the date that the respondent sold the coffee shop.
Requesting for medical information from employees with disabilities is an important step in the accommodation and return to work process. However, employers must be careful making these requests. Employers can run into trouble when making requests too broad, or, as seen in this case, making requests that are not actually related to accommodation.
At the 2013 Employment Law Conference, employment lawyers Ryan Conlin and Allison Taylor will provide you with strategies on implementing success return to work program, including valuable guidance on:
- Your right to demand sufficient medical information to substantiate limitations and assist in accommodation enquiries,
- The WSIB’s new enforcement approach,
- How WSIB obligations interact with Human Rights Code requirements, and
- How to manage suspected malingering.
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