Contact with employee on medical leave

Don't rely too much on third-party insurer

Question: If an employer has a third-party provider of short and long-term disability benefits, does it have any legal obligations or right to contact the employee once the employee is on leave, or should everything go through the third-party insurer?

Answer: Just because an employee is on a medical leave and receiving disability benefits does not mean that the employer is barred from contacting the employee or has no obligations in respect of the employee. On the contrary, the duty to accommodate an employee continues to exist while an employee is on medical leave, even if the employee is receiving disability benefits from an outside insurer. As a result, in order to meet its duty to accommodate, an employer may need to contact an employee who is on leave in order to obtain information respecting the employee's ability to return to work and any accommodations that are reasonably possible.

While employers may rely on a third-party insurer's assessment of an employee's fitness to work in assessing the employer's duty to accommodate, they do so at their own peril. If a third-party insurer is wrong about its assessment of an employee's fitness to work and any accommodations the employee may or may not require, the employer will ultimately be liable for any damages which arise as a result of a failure to accommodate.

For example, if an employee brings a human rights complaint or grievance alleging that the employer failed to accommodate him, and the employer relies on information from the third-party insurer which supports that the employee was not disabled, or did not require an accommodation, the employer will be responsible for the failure to accommodate if the tribunal comes to conclusion that differs from the insurer's. Because of this, it is advisable for employers to keep in reasonable contact with employees on medical leave to allow them to independently assess (with assistance from medical professionals where required) whether and when they can return from work, and any accommodations they may require. Employers are entitled to ask for reasonable medical information from an employee to support an absence from work or to determine fitness at work, even if the employee has a disability claim being administered by a third-party insurer. So while an employer can and is entitled to rely on the insurer to do the work of managing an employee on medical leave, it must bear the consequences of the insurer's decisions. Knowing this, employers may want to make decisions based on their own assessments and knowledge of their workplaces.

Meghan McCreary is a partner practicing labour and employment law with MacPherson Leslie & Tyerman LLP in Regina. She can be reached at (306) 347-8463 or mmcreary@mlt.com.

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