'There were follow-ups and clear warnings about the consequences of failing to co-operate,' says lawyer looking at disability leave
“Employers are required to accommodate to the point of undue hardship, but they need sufficient information to properly do so - and the employee is entitled to accommodation that’s reasonable in the circumstances, not necessarily the perfect accommodation they would want.”
So says employment lawyer and workplace investigator Aleksandra Pressey of Williams HR Law in the Toronto area, after a federal adjudicator dismissed a worker’s complaint following his dismissal for failing to respond to repeated requests for medical information supporting his medical leave.
The worker was employed with Bell Canada in the Control Centre. His duties included responding to emergencies across Canada, helping technicians on the phone, and handling phone calls.
In May 2020, the worker went on disability leave with a medical certificate stating that his absence was justified until May 24. Bell’s third-party benefits provider, Manulife, sent the worker a letter about the short-term disability (STD) program along with a form and a mental health questionnaire for his doctor to complete by May 28.
The information in the questionnaire was intended to certify that the worker was unable to perform the essential duties of his regular job due to an illness or injury unrelated to work and included questions about the worker’s symptoms, medication, referrals to specialists, degree of disability, functional limitations or work restrictions, and expected return to work.
Manulife attempted to contact the worker several times, but it was unsuccessful.
Medical certificate
On May 22, the worker provided a medical certificate from his doctor stating that the worker would be absent from work for an undetermined period. The certificate also said that the worker had previously suffered a stroke and must avoid stress and COVID-19.
On May 25, Manulife contacted the worker, but the worker wasn’t co-operative. He didn’t want to explain what was keeping him from working and refused to answer questions about his diagnosis.
Manulife didn’t receive the form or the questionnaire by the deadline and sent him several reminders. Without the requested medical information, Manulife suspended the worker’s STD benefits and informed Bell that the previous medical certificate didn’t provide details or functional limitations.
The worker finally sent the form on June 10. It indicated that the primary diagnosis was “generalized anxiety disorder” and the secondary was “post-stroke stress/COVID,” with the worker totally unable to perform the usual tasks of his job. There was no medication prescribed, just a psychological follow-up.
Manulife reinstated the worker’s STD benefits until June 28 but said that it needed the mental health questionnaire to reassess his file beyond that date. The deadline arrived and, after several attempts to contact the worker, Manulife suspended his STD benefits again.
More medical information requested
The worker sent a medical note from his doctor on June 29, stating that he had been seen for medical reasons and had an appointment on July 23.
Bell wanted to plan the work for its technicians, so it sought information on the worker’s expected return to work. Manulife was unable to provide that information, and the next information from the worker came on July 27 in the form of a medical note saying his absence was for an indefinite period due to significant stress. Neither Bell nor Manulife were able to get a hold of the worker.
Another medical note extended the worker’s absence to Aug. 31, but with no additional information. Manulife told the worker that it still needed the mental health questionnaire to reassess his file.
Starting in September, Bell sought additional information from the worker to assess his ability to return to work or accommodate any functional limitations. After multiple attempts, the worker provided a doctor’s note indicating that he was fit to return to work on Sept. 21 but subject to restrictions such as not working nights or overtime, averaging four hours in front of the computer, and avoiding stress.
Manulife requested details from the doctor about how the worker’s restrictions limited his ability to perform his job duties or why they were necessary. Bell requested information on the end date of the accommodations, the frequency of shifts the worker could work, and whether he could work consecutive days. It also found that the instruction for the worker “avoid stress” was vague.
Return to work after medical leave
Bell formally summoned the worker to return to work or justify his ongoing absence with the requested medical information by Oct. 1. The worker didn’t respond, so Bell summoned him to a meeting on Oct. 9. If he failed to report, the worker would be subject to discipline up to and including termination.
There was an added layer of complexity with the STD benefit provided by an external provider, according to Pressey.
“The third-party insurer can ask for quite a bit more information than an employer can - the employer is limited to asking for prognosis and medical limitations,” she says. “That’s why sometimes employers like having a third-party insurer adjudicate claims for disability leaves, because they can ask for more information - but the employer needs to take an accommodation request in good faith, request the information it needs, and then determine whether it can reasonably accommodate the employee.”
The worker still didn’t respond, but a union representative told Bell that the worker intended to provide a new medical certificate to specify his functional limitations. The worker did so on Oct. 13, with the same limitations and a clarification that he should “change teams to avoid stress.”
Bell maintained that this still wasn’t enough information to accommodate the worker or plan his return to work, so it sent a third summons ordering the worker to report for work or provide the requested medical information by Oct. 28, under the risk of termination for failure to do so.
The worker didn’t respond and, on Nov. 12, Bell terminated his employment.
Duty to accommodate
The union grieved, alleging that Bell had the necessary information to accommodate the worker. Alternatively, it argued that if the dismissal was administrative, Bell exercised its managements rights in an abusive, unreasonable, and discriminatory way.
The adjudicator determined that the dismissal was administrative rather than disciplinary. Bell’s actions were based on an inability to engage with the worker regarding his work status and limitations, rather than an intent to penalize him, the adjudicator said.
The adjudicator also found that the worker repeatedly failed to provide the necessary medical documentation, despite multiple requests from both Bell and Manulife. He didn’t respond to calls or emails, nor did he submit a completed mental health questionnaire requested as early as June 2020. The adjudicator noted that Manulife suspended the worker’s disability benefits due to insufficient medical justification, and he remained unresponsive despite knowing this.
The adjudicator concluded that the worker didn’t fulfill his duty to co-operate in the accommodation process. While Bell sought clarification regarding his work limitations, he failed to communicate or provide sufficient medical details, said the adjudicator.
Nature of accommodation
The employer needs enough information to assess the nature of the accommodation options that are necessary and available, says Pressey.
“For example, there was a suggestion that the worker was suffering from significant stress, and one of the limitations was to change teams to avoid stress, but that’s not specific enough for [Bell] to act on it,” she says. “If the stressor was hours, perhaps there might have been flexibility in the schedule; if the stressor was a particular relationship, there might have been an investigation and further remedial measures taken - but because the worker decided not to co-operate, Bell simply didn't know.”
Given the lack of engagement from the worker, Bell was unable to explore reasonable accommodations, said the adjudicator, rejecting the union’s argument that Bell acted unreasonably or discriminated against the worker based on his disability and concluding that the worker’s failure to communicate prevented any meaningful accommodation discussions.
The adjudicator rejected the grievance, finding that the termination was a justified administrative decision.
Accommodation procedure
The union argued that Bell didn’t prove undue hardship, but the reality is that the accommodation process didn’t make it that far due to the worker’s lack of co-operation, says Pressey.
“The procedural part [of accommodation] involves gathering information and taking the request in good faith, but Bell was really stymied here when it came to doing any of those things,” she says. “The threshold to reach undue hardship is quite high and it may very well have been that it wouldn't have been a reasonable argument, but we never got there in this case.”
It's a good example of how employers should be patient and still take the procedural steps in accommodation when an employee is being difficult, adds Pressey.
“There were follow-ups and clear warnings about the consequences of failing to co-operate,” she says. “Because that communication was clear and those opportunities were given, it supported Bell’s argument that this was a reasonable exercise in decision-making - it wasn't arbitrary and it wasn't discriminatory, the worker just refused to participate.”
