Performance issues with employee on modified work
Question: We have an injured employee on a temporary modified work program approved by his physician. However, he’s not doing a very good job. Is there a legal risk if we discipline the employee or remove him from the position?
Answer: Canadian employers have an obligation under human rights legislation to take reasonable steps to accommodate disabled employees, up to the point of undue hardship. Where an employee seeks to return to work from an illness or injury, this duty to accommodate will often require a graduated or modified return to work program.
Problems with modified work programs can be avoided by taking preventative steps before the employee is allowed to return to the workplace. For example, an employer should always ensure an employee’s request for modified work is supported by proper medical evidence that indicates such a program is required for medical reasons, sets out the specific restrictions the employee will be under and the duration and progression of the program. Also, the work the employee will be performing while on the program must be tasks that she has the qualifications and ability to perform. It is important to keep in mind the duty to accommodate is shared by the employer, the employee seeking accommodation, and, where applicable, the union.
Substandard work by a disabled employee during a modified work program may be the result of a number of issues. The first step will usually be to determine whether the employee is underperforming for medical reasons. This can be accomplished by talking to the employee or possibly obtaining further medical evidence, if necessary. If the employer has doubts about the employee’s fitness to work, it may be appropriate to hold the employee out of service — usually requiring her to go back on sick or disability leave — while the required medical evidence is obtained. If there is a discrepancy between the medical information provided by the employee’s physician and the employer’s workplace observations, an independent medical examination may be justified, subject to any collective agreement restrictions.
If the new medical information indicates the employee is not medically fit to continue with the modified work program, the employer will need to determine whether the program can be adjusted to accommodate the employee’s restrictions. In some cases, the employer may need to consider placing the employee in a different position or look at whether there is available work that could be bundled together to provide the employee with work and the employer with economic value.
If the medical information indicates the employee is medically fit for the modified work program and no further accommodation is required, the employer should be free to deal with the situation like any other performance-related issue. This will involve looking at whether the employee’s performance problems are culpable or non-culpable in nature. If the problematic performance or behaviour is culpable, a disciplinary approach will often be appropriate. But if the performance issues are non-culpable, then non-disciplinary, corrective action will likely be required.
