In the recent decision, the Ontario Human Rights Tribunal (“OHRT”) addressed the issue of when it would be reasonable for an employer to request an Independent Medical Exam (“IME”) from an employee during the accommodation process. The OHRT ruled that an employer request for an IME will be justified when it was “reasonable” in the circumstances of creating an individualized accommodation plan.
Sometimes, individuals will be dismissed from their jobs at a time when they are on disability leave. There is nothing wrong with this, as long as the decision to dismiss is entirely unrelated to the employee’s disability. For example, if an organization decides to eliminate a department of ten people, one of which is currently on disability, that individual is not entitled to greater protection than his or her colleagues.
Although it is accepted that an individual can be dismissed while they are on disability leave, some practical issues arise. First, does the period of notice commence while the individual is disabled and unable to work, or does it only start running once their leave ends? Furthermore, how is pay in lieu of notice to be calculated if the individual is unable to work? Do they get their full salary, or the value of disability benefits?
Last year, we reported on the notable Human Rights Tribunal decision of Fair v. Hamilton-Wentworth District School Board where the Tribunal ordered the reinstatement, along with over $400,000 in back pay and damages, to an employee despite the employee having been away from the workplace for almost a decade.