Saskatchewan Court of Appeal overturns decision that employer failed to accommodate
“[Employers] must make sure they're communicating clearly the information that they need to accommodate a disabled worker, because that information is the foundation for creating an accommodation plan when they're able to return to work - and that necessarily involves communication from the worker.”
So says labour and employment lawyer Andrea C. Johnson, partner at Gerrand Rath Johnson in Regina, after the Saskatchewan Court of Appeal overturned a lower court’s ruling that found an employer failed to accommodate an employee's disability.
The now-64-year-old worker was hired in 2013 by the Rural Municipality of Baildon, Sask., to be its administrator. In November 2014, she suffered a concussion in a non-work-related accident. Her doctor authorized a medical leave until Dec. 4.
After the worker worked a four-hour shift, she developed a mild headache. She worked one more short shift and then obtained a medical certificate stating that she should be off work until Feb. 18, 2015. However, the worker didn’t provide the certificate to the municipality.
On Jan. 12, 2015, the municipality directed the worker to report to work or provide a medical note by Jan. 26, as the most recent information only authorized a medical leave up to Dec. 8, 2014. The municipality also requested a medical certificate indicating her expected return to work. A failure to comply with this directive would “result in disciplinary action which could include termination.”
The worker provided another medical certificate that authorized sick leave up to March 18.
Additional medical leave
At the end of the leave, the municipality wrote to the worker stating that any further requests for medical leave would require certification by a medical practitioner about her medical status and expected return-to-work date, as per the Saskatchewan Employment Act (SEA), which allows an employer to require “a certificate of a duly qualified medical practitioner certifying that the employee was incapable of working due to illness or injury” for absences exceeding 12 weeks in a 52-week period.
The worker replied with a medical note extending her medical leave until April and indicating she could return to work on a graduated basis of three days per week, four hours per day, for two weeks, followed by a reassessment. However, on May 1 she advised that her doctor had taken her off work again “until further investigation by a neurologist.”
Two weeks later, the worker and her spouse met with the municipality’s employee committee. However, nothing was resolved and the worker was upset with how the meeting went.
The worker retained legal counsel, who sent a letter stating that the worker would return to work upon receiving medical clearance.
The municipality advertised for a temporary full-time administrator and hired one on Aug. 24. The worker continued to send medical certificates, eventually extending her leave until Nov. 21.
Request for medical information
On Feb. 10, 2016, the municipality sent a letter to the worker’s doctor inquiring about her prognosis and expected return to work, outlining her job duties. The worker replied that she would pass the letter to her neurologist, but the municipality didn’t receive a response from either the neurologist or the worker’s doctor.
On Feb. 26, the municipality sent a letter stating that the worker had been absent without an approved leave of absence since Nov. 22, 2015, and she was required to report to work on Feb. 29. If she didn’t, she would be considered to have abandoned her position.
The worker’s legal counsel responded, saying that her injury made it impossible to return to work but she hadn’t abandoned her position as she was medically disabled. The municipality acknowledged that the worker was disabled but reiterated that it needed her prognosis, information on her ability to perform her job duties, and her accommodation needs.
In late June, the worker’s doctor said that she would be expected to return to work “within the next week” for two half-days per week for one month followed by a reassessment. The doctor didn’t indicate when she would be able to return full-time or how permanent her restrictions would be.
In July, the municipality hired a new administrator, advising her that it was full-time but it wasn’t permanent if the worker returned to work.
Restrictions and functionalities
The municipality asked for clarification on the worker’s restrictions and her counsel replied that she wasn’t restricted from any duties but she needed a UV protection screen on her computer monitor. The worker’s doctor didn’t help with any limitations or functionalities, so the municipality asked if she would consent to an assessment by an independent head trauma team. The worker’s counsel refused, but the worker said that she would undergo an independent assessment if the municipality paid her “as if she was on long-term disability.”
On Aug. 5, the municipality asserted that it had accommodated the worker with part-time and temporary replacements during her medical leave and it had reached the point of undue hardship as far as keeping the position open. It maintained that it didn’t have sufficient information to identify the worker’s limitations and functionalities.
The worker’s counsel provided a doctor’s note indicating that she had been ready to return to work from June 30 on the two half-days a week schedule.
When return-to-work efforts fail, employers can ask for more specific information about what to make it succeed the next time, according to Johnson.
“I find that sometimes there's a disconnect between the medical professionals and the lawyers, so if the employer and legal counsel can direct the medical professional’s attention to the information that's helpful for the return to work, such as providing the detailed job description, that can help move the process along faster and more smoothly,” she says. “In this case, for whatever reason, there were delays in providing the information, so the employer didn't really have anything to go on.”
Disability discrimination
The worker filed a human rights complaint alleging that the municipality refused to accommodate her gradual return to work, discriminating against her on the basis of disability. Shortly afterwards, the municipality told the worker’s counsel that her request to return for two half-days per week would require it to create a new position and give her “make-work” tasks, which it wasn’t required to do in its duty to accommodate.
The Saskatchewan Court of Queen’s Bench ruled that the municipality discriminated against the worker by not accommodating her gradual return to work, which was adverse treatment following her initial leave of absence. The court determined that the municipality had never intended to allow the worker to return on less than a full-time basis and ordered it to pay the worker $130,000 in general compensation plus $10,000 in special compensation.
The municipality appealed, arguing that it was the worker who thwarted the accommodation process by not providing sufficient information to help with accommodation.
The Court of Appeal noted that an employer is legally entitled to seek certification from a medical practitioner confirming the employee’s leave of absence, as well as a prognosis to help accommodating a return to work.
The Court of Appeal disagreed with the lower court, finding that the municipality had met its obligations by providing the worker with an extended medical leave and making reasonable attempts to facilitate her return. The appeal court noted that the municipality had accommodated her disability through a 21-month medical leave of absence and had repeatedly sought additional information to support her return to work. In addition, the lower court erred in finding that the municipality was never prepared to accommodate the worker, as it continued to communicate with the worker and was prepared to return her to her position even after hiring someone else, said the appeal court.
Undue hardship
The Court of Appeal also found that the municipality’s decision not to accommodate the worker’s part-time return was reasonable, given the lack of clear medical information on her ability to fulfill her duties. The court further held that the municipality reached a point of undue hardship, as it had made multiple attempts to support her return without success and the worker only provided a “loose and open-ended return-to-work plan” that lacked specific information about her accommodation requirements and her capabilities.
“The employer was at a bit of a disadvantage because it lacked the information it needed to really understand what kind of accommodation might have made a return to work successful for this employee,” says Johnson.
The court allowed the appeal, set aside the lower court’s decision, and ruled that the human rights complaint wasn’t substantiated.
“The employee's biggest responsibility is to communicate what their limitations and restrictions are, from a practical perspective of medical limitations and restrictions,” says Johnson. “And then the employer, with the assistance of the union if there's a union involved, takes that information and finds ways to change the job or find a different job for the employee so that their limitations and restrictions are met and they're able to do valuable work in exchange for compensation.”
