These obligations may sound simple and easy to apply, but they frequently create a range of questions and issues in particular cases. For example, if an employee tells their employer that they have a disability, what information is the employer entitled to seek from the employee about their condition? Can they verify this information by requiring the employee to attend an independent medical exam? And what are the consequences for the employee if they fail to comply?
This article looks at these questions, along with a recent decision of an adjudicator appointed under the Canada Labour Code where an employee who had refused to attend an independent medical exam and was fired complained that his dismissal was unjust.
Employers need to accommodate disabled employees to the point of undue hardship
Employers are prohibited from discriminating against employees on a variety of grounds that are listed in the Ontario Human Rights Code and the Canadian Human Rights Act which applies to employees in federally regulated workplaces. Relevantly for the purposes of this article, this includes a prohibition on discrimination on the basis of disability.
An employer of an employee with a disability has a duty to accommodate the employee’s needs up to the point of undue hardship. This requires the employer to take the steps needed to enable the employee to perform their job, which may involve modifying their duties, changing their work schedule or providing particular equipment.
Employees generally need to tell their employer they have a disability to obtain an accommodation
Accommodation has been described as a shared process, with both the employer and employee having roles. The employee should generally tell their employer that they have a disability so that their employer is able to find appropriate accommodation.
The employer has the responsibility of leading the accommodation process and coming up with a solution. The employee may also have ideas and should take part in the discussions. Once the employer has initiated a reasonable proposal for accommodation, the employee needs to cooperate and take reasonable steps to implement the proposal.
In some cases, employers may be entitled to seek additional information or verify the information provided by an employee
Employers need some degree of information to understand the employee’s needs and provide suitable accommodation. However, requests for information should normally be limited to those reasonably related to the needs of the employee in order to make the accommodation.
In some instances, the employer may ask for information from a doctor, such as information about the employee’s disability, where this is genuinely needed to implement an accommodation. As shown below, in some circumstances, an employee can be required to attend an independent medical exam.
Employee terminated for cause after failing to attend an independent medical exam
In Wan v Intek Communications Inc., an employee brought an unjust dismissal action under the Code after he was fired for failing to attend an independent medical exam.
The employee worked as a warehouse assistant for a telecommunications company. He was previously a cable technician but after being at fault for an accident in which he was injured and subsequently disciplined, the employee was hurt again and was accommodated into the warehouse role. He completed a functional abilities evaluation in 2015, which suggested “micro-breaks,” which were implemented with support from his treating physician. He was warned again in 2017 for taking more breaks than anticipated.
In 2018, the employee’s physician recommended a five-minute break every 20 minutes for at least five years. The employer wrote to the doctor asking for insight into possible alternative accommodations. The doctor noted that her recommendation was based on the 2015 evaluation, at which point the employer requested that the employee participates in an independent exam. The employee indicated his refusal to attend through his lawyer and was later terminated after failing to show up for the exam.
Employer entitled to require an independent exam
The adjudicator decided that:
“the Complainant failed to discharge his onus of proving prima facie discrimination … because of his repeated and unjustified refusal to satisfy his duty to cooperate in the search for a reasonable accommodation of his disability, leading to the irreparable breakdown of the employment relationship”.
The adjudicator explained that searching for a reasonable accommodation may require the disclosure of medical information and the employee’s participation in an exam, but a balance needed to be struck between the employee’s privacy interests and the employer’s need to know sufficient information in order to provide suitable accommodation.
In this case, the employer had a basis for doubting the adequacy of the information provided by the employee. Specifically, the recommendation for more breaks was based on an outdated evaluation.
Termination for cause was justified
The adjudicator found that the employer acted reasonably in first seeking more information from the employee’s treating physician and, when that proved unsatisfactory, then requiring attendance at an independent exam. The information sought by the employer was necessary to understand the employee’s limitations.
As a result, the adjudicator decided that the employer acted reasonably in requiring an independent exam, did not discriminate against the employee and had grounds to terminate the employee for just cause.
Contact Toronto Employment Lawyer for Guidance on the Accommodation Process
The Haynes Law Firm helps both employers and employees deal with issues relating to the accommodation process. We advise on the rights and obligations relating to the search for reasonable accommodation for disabled employees and provide representation in discrimination claims. Paulette Haynes assists employers to comply with their legal responsibilities to mitigate risk and fights for the rights of employees to be treated fairly and without discrimination in the workplace. Please contact the Haynes Law Firmonline or call us at 416.593.2731.