By Stuart Rudner
In recent years, much has been written about the duty of an employer to accommodate disability, which can often involve having an employee on medical leave for an extended period of time.
In many cases, tensions arise when the employee reports she is ready to return to work. Employers are often uncertain as to whether they can require medical documentation proving the employee is fit to return to work, and what to do if the employee does not provide it. Conversely, many employees feel as though they are being discriminated against or harassed when they are told they cannot come back to work until they provide such medical evidence.
What does the law say? Well, a very recent decision of the Superior Court of Ontario found that employees have a positive duty to provide evidence of their physical ability to return to work after a medical leave. This decision, while welcome news for employers, is not entirely consistent with previous case law and has been met with criticism by some experts, including a fellow blogger, Sean Bawden, whose comments on the case can be found here.
In Nason v. Thunder Bay Orthopaedic Inc., the plaintiff was a registered orthotic technician in his mid-40s. His duties related to the fitting, preparation, casting and modifying of plaster casts, which required the use of several hand tools, some of which involved substantial vibration.
Darren Nason commenced his employment with Thunder Bay Orthopaedic in 1993. In 2006, he began experiencing some pain and numbness, and the medical information suggested it was caused by the vibrations in the equipment that he used on a daily basis. However, Nason did not miss any work or require any accommodation over the following years.
In 2010, a report was filed with the Workplace Safety and Insurance Board in order to initiate a potential claim. The claim was allowed and although Nason testified he did not need or request any accommodation at that time and that his condition did not affect his work, he was advised by Thunder Bay Orthopaedic (TBO) in the summer of 2010 that it could no longer accommodate him.
Nason came to work to find all of his personal belongings packed up and he was told that since WSIB had accepted his claim he was, essentially, WSIB’s problem at that point. He was put on medical leave and there followed several years of somewhat ambiguous correspondence and communication.
Nason occasionally wrote to the company indicating he wanted to come back to work, and although there was no written response, the evidence was that the company attempted to contact him but was unable to. The court accepted this evidence. Early in 2013, Nason sent another letter to the company in which he commented that it did not appear the company was interested in accommodating him by allowing him to return to work, and that he wanted to discuss a severance package as a result. Soon thereafter, he received a termination letter.
Nason then sued for wrongful dismissal along with significant claims for breaches of his human rights. In particular, he alleged a failure to accommodate.
One of the key issues that was addressed in the decision was whether the company failed in its duty to accommodate by not requesting medical information in order to assess Nason’s ability to return to work. The key portion of the decision is set out in full below, as it is quite illustrative of the court's approach to the issue:
“The next contact between the parties was the exchange of letters and some telephone calls in January 2013. At no point in time, up to and including January 2013, did Mr. Nason provide any information to TBO, medical or otherwise, that he was physically able to return to work, what restrictions he may have had and what accommodation he felt would be necessary. To this point in time, TBO did not actively solicit this information from Mr. Nason or third parties. Mr. Nason had by now come to the conclusion that TBO did not want him back. He repeatedly inquired about a severance payment from TBO. TBO came to the conclusion that Mr. Nason did not want to return to work at TBO. TBO’s Jan. 22, 2013, termination letter resulted from this breakdown in communication.
“I am not persuaded that TBO discriminated against Mr. Nason or infringed his human rights between August 18, 2010 and January 22, 2013. The defendant submits that TBO failed in the procedural aspect of their duty to accommodate. However, the accommodation process is not a one-way street. A disabled employee who wants to return to work must cooperate in the facilitation of accommodation by providing the information necessary to allow the employer to attempt to create solutions. A disabled employee must communicate the physical ability, not just the desire, to return to work.”
“Mr. Nason did not do so. I accept that he wanted to return to work. This was communicated to TBO. What he failed to provide to his employer was any form of confirmation that he was physically able to do so. I find this particularly puzzling in light of the seriousness of Mr. Nason’s condition, the number of surgeries he underwent and the pessimistic tone of post-operative physiotherapy reports, the latter noting permanent restrictions and impairments. I have expressly commented only on Mr. Belcamino’s progress reports. There are numerous other reports in the record, from Mr. Nason’s family doctor and from WSIB, that paint a similarly pessimistic picture of Mr. Nason’s condition and prognosis. In all of the circumstances, I find that it was reasonable for TBO to require independent confirmation of Mr. Nason’s physical condition and restrictions before allowing him to return to work.”
“While giving evidence at trial, Mr. Nason described himself as a disabled employee able to return to work if accommodated. In light of Mr. Nason’s serious disability in 2010 and his series of surgeries between April 2011 and August 2012 without any appreciable progress, it was incumbent on him, as a disabled employee who truly wanted to return to work, to provide authoritative confirmation that he was physically able to do so. How can an employer assess their ability to accommodate a disabled employee in their particular workplace without knowing the level of disability and what accommodations are necessary?”
“TBO could not meaningfully comply with their obligation to accommodate Mr. Nason without a reasonable level of cooperation and communication from him. In my opinion, TBO did not discriminate against Mr. Nason between August 18, 2010 and January 22, 2013. This aspect of the plaintiff’s claim is dismissed.”
As one can see, the court did not accept the plaintiff's arguments, and put the onus on an employee on medical leave to produce appropriate documentation in order to show they can return to work. As the judge said,
“A disabled employee who wants to return to work must cooperate in the facilitation of accommodation by providing the information necessary to allow the employer to attempt to create solutions. A disabled employee must communicate the physical ability, not just the desire, to return to work.”
The court was critical of Nason for failing to do so, taking particular note of the specific circumstances of the case, including “the seriousness of Mr. Nason’s condition, the number of surgeries he underwent and the pessimistic tone of post-operative physiotherapy reports.”
The court also took note of the fact that “Mr. Nason described himself as a disabled employee able to return to work if accommodated." The court found that in order to be able to assess the need for accommodation, the employer was entitled to know the extent of the disability and accommodations required, and could not comply with his obligation to accommodate without it.
No one should take this case as establishing a clear rule with respect to whether or not employers can require medical documentation before allowing an employee on medical leave to return to work. This case highlights the tensions between the two parties at that critical juncture: On the one hand, an employee wants to be allowed to return to work while protecting her right to privacy. On the other, an employer has a duty to maintain a safe work place, and must satisfy itself that there are no safety concerns in bringing back an employee that was previously deemed to be unfit to work. All of this is to be assessed within the context of an employer's duty to accommodate the individual to the point of undue hardship, and the well-established principle, which the court referenced in Nason, that accommodation is to be a two-way street, and the employee must provide sufficient information in order to allow the employer to assess its accommodation requirements.
Like many questions in the world of employment law, the answer as to whether or not an employer should require medical documentation before an employee is allowed to return to work will be “it depends."
One aspect of the decision in Nason that, in my view, is reasonable is that the court took particular note of the medical circumstances. In some cases, it should be obvious that while an individual may have been off work for a period of time, there is no need for overly stringent demands for documentation before allowing him to return.
In others, it will be perfectly reasonable for an employer to require satisfactory evidence that a return to work is appropriate. In any circumstance where the employee will be seeking ongoing accommodation, the employee must provide sufficient medical evidence in order to allow the employer to assess the need for accommodation and the options available.
Ultimately, employers should not adopt a “one size fits all" policy with respect to employees’ return to work, and must assess each case on its own particular facts. They should not always require detailed medical documentation, and should certainly never use the requirement for medical documentation in order to either harass an employee or as a pretense to prevent her from returning to work.
Employees, on the other hand, must recognize they have a duty to take part in any accommodation analysis, and it is insufficient for them to request accommodation and then refuse to provide appropriate medical documentation. When an employee is off work for medical reasons and then advises that he is ready to return, he should be prepared to provide appropriate medical documentation in the right circumstances, and should not, as some employees unfortunately do, raise privacy concerns whenever any request for information is received.
Like the duty to accommodate more generally, the issue of how parties should handle a return to work will continue to evolve over time and will always be based upon the particular circumstances of the situation in question. There are no absolute rules that will apply to all.