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What’s reasonable when assessing an employee’s fitness to return to work?

When an employee refused to disclose any medical details prior to returning to work following a leave of absence due to mental disability, the employer was left without the necessary knowledge to determine her fitness to return to her pre-disability leave position and if accommodation was required. The Ontario Labour Arbitration Board allowed the employer to request further medical information from the employee and ordered that the employee stay off work until the process was complete and accommodation needs were determined.

What happened?

On one hand, the employer wanted more medical information and the employee refused to provide it. The employer asked the employee to consent to an independent medical review and an updated functional abilities evaluation and remain off work until they were completed due to concern about the employee being unfit to work. The employer wanted the employee to cooperate during the accommodation process.

On the other hand, the union argued that the main issue was whether the employer’s decision to place the employee off work after a return to work was justified, and the union maintained it was not acceptable. The union asserted that the onus was on the employer to demonstrate that its request for medical documentation was clear, reasonably related to the issues of accommodation, and that it had no alternative to placing the grievor off work until it had received the medical documents or until the employee demonstrated she was fit for employment, and that its decision to place the grievor off work was justified. In this case, the union alleged the employer could not do so.

The arbitrator concluded that, while the documentary record did not reveal any issue with or basis for reviewing the employee’s physical restrictions or accommodations, the employee’s mental condition was “quite a different matter.”

In fact, there were medical documents that the employee refused to provide to anyone, including the board. The employee wrote a letter to the employer refusing to sign consent forms allowing the doctor to discuss the employee’s functional limitations and restrictions with the employer in order to determine fitness for work. The employee went so far as to accuse the employer of harassing her.

Ultimately, the board declared it was reasonable for the employer to request the independent medical review, and the employer had to be able to review the employee’s medical documentation with an appropriate medical specialist. The board also ordered the employer to consult with the union and employee or her treating professionals about returning to work after the completion of the independent medical review. What’s more, the employee had to remain off work until the process was completed.

The board mentioned these important points in its reasoning:

  • An employer cannot be faulted if an employee fails or refuses to provide sufficient information to establish that accommodation is necessary, or to establish what accommodation is required
  • The onus was on the employee to establish the nature and extent of the disability, consequent restrictions and the accommodations required
  • The employer can, but is not obliged to, accept the employee’s word or a note that merely states that the employee has a disability and requires certain accommodation
  • The employer was entitled to request, and the employee was obliged to provide, sufficient reliable medical information to enable the employer to satisfy its obligations under the collective agreement and Human Rights Code (to facilitate the safe return to or continued work with any required accommodation to the point of undue hardship and to enable the union to comply with its accommodation obligations)
  • All parties (employer, employee, union) have an obligation to cooperate in facilitating the employee’s safe return to or continued work, and implementing appropriate necessary accommodation to the point of undue hardship; the goal of accommodation is to ensure that an employee who is able to work has the opportunity to do so
  • The recent ruling establishing the tort of invasion of privacy (Jones v. Tsige) does not prevent an employer from asking for an employee to disclose confidential medical information for a legitimate purpose; such a request does not constitute an improper or actionable intrusion on the employee’s right to privacy

The board acknowledged that mental illness is among the most difficult issues to address in the workplace due to its invisible nature, the individual nature of the illness and one’s ability to cope, and the stereotyping and stigmatizing perceptions of the sufferer.

This was why it was so important for the employer to obtain the information necessary to facilitate the accommodation process. Though no one can be forced to undergo an independent medical exam, there are times it is necessary and appropriate, and the present case was one of those times. All that the employer knew was that the employee had a mental illness, and nothing else. The employer knew nothing about the nature of the illness, how it affected the employee’s ability to work or the necessary accommodations to make.

The employer was correct, and its approach was reasonable. Indeed, the employee was wrong to refuse to meet her obligation to comply under the collective agreement and the Code. What’s more, the board reiterated that the union failed to provide sufficient medical evidence or reports. The documentary record was called “patently deficient.” Contrary to the employee’s claim, there was no discrimination or harassment of any kind. The board allowed the employer’s grievance in terms of the mental illness component.

What does this mean for employers?

Keep in mind that the following otherwise confidential medical information will generally be required for accommodation purposes:

  • The nature of the illness and how it manifests as a disability (which may include diagnosis, particularly in cases of mental illness)
  • Whether the disability (if not the illness) is permanent or temporary, and the prognosis in that respect (i.e., the extent to which improvement is anticipated, and the time frame)
  • The restrictions or limitations that flow from the disability (i.e., a detailed synopsis of what the employee can and cannot do in relation to the duties and responsibilities of her normal job duties, and possible alternative duties)
  • The basis for the medical conclusions (i.e., nature of illness and disability, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes in that respect)
  • The treatment, including medication (and possible side effects) which may affect the employee’s ability to perform her or his job, or interact with management, other employees or customers

What do you think? Was a forced independent medical review appropriate? Do you think an employee has the right to keep all information concerning a disability confidential, or is this impractical in light of the duty to accommodate to the point of undue hardship?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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