'I can understand why they were looking for some more information to clarify matters'
“All workers have an obligation to participate in the accommodation process, and they have an entitlement to reasonable accommodation, not perfect accommodation,” says Nicole Toye, an employment lawyer and partner at Harris and Company in Vancouver.
That seemed to be a sticking point for a British Columbia worker who failed in his human rights complaint, alleging that his employer didn’t facilitate his return to work from medical leave when it required more medical information.
“It sounds like [the worker] failed to provide any further medical information and ultimately decided to resign rather than provide the information,” says Toye. “I think [the worker] was perceiving it as something that they were not entitled to or that they were trying to build a case for him not being ready to come back.”
Eager to get back to work
The worker was hired as a project manager in 2017 by Kindred Construction, a residential and commercial building construction company in Vancouver.
In March 2018, the worker had a stroke. He remained in hospital for two months and, after he was released, he continued to be treated by his family doctor and a vocational rehabilitation counsellor.
In April, the worker submitted a critical illness benefits claim to Kindred’s third-party insurer with a report indicating that vocational goals were still months away. The worker also applied for long-term disability (LTD) benefits.
In mid-June, the worker emailed the director of HR saying that the LTD claim forms could take a while and he “was thinking about just going back to work.” He proposed easing back into work at the end of July and the HR director said that Kindred couldn’t allow him back without medical approval.
In late July, the worker emailed to say that his doctor had advised him not to rush back too soon. He added that he might be ready for a graduated return to work in March 2019 and confirmed that the vocational rehabilitation counsellor recommended a return around then.
The HR director sent another email stating that “no party wants you back to work before you are fully able” and his return would require a sign-off from his doctors.
The email offended the worker and he replied with an email full of expletives saying that “at some point you just have to get back to it” and he needed a contingency plan if his LTD claim didn’t go through. The HR director replied that his accusations and behaviour were unacceptable and if he wanted to return to work, Kindred required formal written sign-off from his rehabilitation specialist and his family doctor.
The worker then said he wanted to return in September and provided a doctor’s note saying he should be ready for a trial of modified duties in the near future. This contradicted what his rehabilitation counsellor had said, so Kindred provided medical forms for both his doctor and rehab counsellor to complete.
The worker didn’t return the forms, but the rehab counsellor called the HR director to say that the worker had a brain injury and wasn’t ready to return to work in September. The worker then provided a doctor’s note saying that he was unfit for work as a carpenter, but he should be fully fit for the project management position, based on Kindred’s job description.
Read more: A B.C. company’s delay in returning an employee to work while it waited for more medical information was reasonable, according to the BC Human Rights Tribunal.
On Oct. 29, four days after his LTD claim was denied, the Kindred worker resigned from his employment. In his resignation email, he said that if he was welcome back, he would have been back already.
Kindred confirmed his decision a week later and the worker said that choosing insurance over working was “a big f--- up.” He also said that Kindred did not have permission to speak with the rehab counsellor as she “does not have any authority in my recovery.” In another email, he said that he had a letter from his family doctor but he didn’t submit it because it was the same as his rejected LTD claim.
The worker filed a human rights complaint alleging that Kindred blocked him from returning from medical leave, thus discriminating against him on the basis of mental and physical disability in employment.
Conflicting medical information
Despite the complaint, Kindred followed proper accommodation procedure, says Toye.
“I didn't really think that what the employer was asking for was in any way unreasonable – it's pretty standard to seek a note of some kind from [the worker’s] medical team confirming that [the worker is] ready to return to work, and that's certainly the case when they previously indicated that it might be many months before [they’re] ready to return,” she says. “I think what they were doing was entirely appropriate and within their rights – the employee unfortunately had a negative response to the inquiry.”
The BC Human Rights Tribunal found that it was reasonably certain that, if the matter proceeded to a hearing, Kindred would be able to demonstrate that it was justified in collecting further medical information. The information Kindred had about the worker’s condition was unclear – a doctor’s note approving a trial of modified duties in the near future, the worker’s statement that he wanted to return in September 2018, and the rehab counsellor’s statement that the worker wasn’t ready to return until March 2019 – and Kindred was justified in requiring sign-off from the worker’s medical team, said the tribunal.
The tribunal also found that when the worker failed to respond to the reasonable request for further medical information, the worker “caused the accommodation process to flounder.”
Read more: A Nova Scotia worker’s failure to provide medical information supporting her long-term absence wasn’t job abandonment, but it provided just cause for dismissal, the Nova Scotia Labour Board found.
Toye says that the worker put Kindred in a tough spot – it had conflicting information while the worker was insistent that he wanted to return to work sooner than expected.
“It certainly seemed like a lot of the information that they had to that point was either unclear or contradictory,” says Toye. “It was also a little bit challenging that the vocational rehab counsellor indicated that he had suffered a brain injury related to the stroke – that's certainly concerning for an employer from a safety perspective and ensuring that they're doing everything to facilitate his proper return.
“I totally sympathize with [Kindred]. It certainly seems to me that it was a bit unclear and I can understand why they were looking for some more information to clarify matters.”
However, while Kindred didn’t do anything wrong, Toye says it could have done more to make things go more smoothly.
“It seems to me that there was a communication breakdown and perhaps some of the issues that arose might have been alleviated if they had just said, ‘We're trying to understand if you are ready and we want to make sure that you come back to work safely,’” says Toye. “But for whatever reason, the words they were using, [the worker] was reading them with a negative connotation.”
The tribunal dismissed the worker’s complaint as having no reasonable process of success in a hearing.
Employer takeaways
Toye sees the case as a good one for employers as it underscores that fact that in many situations it’s reasonable to ask for additional information from an employee on medical leave. It’s also a reminder for employers to be clear on what they’re asking for and why, she says.
“Employees who are dealing with this [may be] in a time of some real stress – be mindful of that and communicate clearly about what you're asking for and why you need it,” says Toye. “I think here, it was a challenging circumstance with temperatures rising, but clear communication can go a long way to avoiding these kinds of disputes escalating to the point where it's in a human rights proceeding rather than just being resolved between the employee and the human resources department.”
“Employees certainly have a role to play in the accommodation process,” Toye adds. “If there's a concern from the employer about whether their disability is going to impact the workplace, or there's a safety concern, or if [the employee is] seeking an accommodation, those are pretty standard circumstances in which medical information is likely to be required by an employer and quite reasonably requested in order to understand whether the employee is ready to return to work.”
See Leson v. Kindred Construction, 2022 BCHRT 64.
