Doctors’ notes for disability on trial

HRPAO seeks clarification on Keays v. Honda at Supreme Court

Can an employer ask an employee with a disability for a doctor’s note?

That fairly straightforward question didn’t really have a straightforward answer in the wake of the Keays v. Honda Canada decision.

The Ontario Superior Court of Justice made headlines in 2005 when it awarded Kevin Keays $500,000 in punitive damages after it ruled his employer, Honda Canada, had discriminated against his disability by forcing him to provide a doctor’s note for every absence. The decision was upheld by the Ontario Court of Appeal in 2006, though the damages were reduced to $100,000.

Honda appealed the ruling to the Supreme Court of Canada, which heard arguments on Feb. 20. The Human Resources Professionals Association of Ontario (HRPAO) sought — and was granted — intervener status. HRPAO became involved over worries the case created a legal grey area concerning the ability of employers to require a doctor’s note to confirm absences related to disabilities.

When HRPAO reviewed the Keays decision, it saw a potential problem for its members, said Stephen Rotstein, HRPAO’s director of government and external relations and general counsel.

“We weren’t sure if the decision was based on the specific facts of the case or stating general principles of the law,” said Rotstein. HRPAO recognized that without a clarification, HR departments in Ontario, as well as across Canada, could be facing trouble.

The trouble would start if other cases used Keays as a precedent, which could create a new interpretation of the law in which anyone with a disability could challenge the right of employers to request a doctor’s note for any absence, said Stuart Rudner, a partner with Miller Thomson in Toronto, who presented HRPAO’s argument to the Supreme Court.

Keays, 35, worked at the Honda plant in Alliston, Ont., for 14 years. Honda considered him a good employee and there were no issues until he started having health problems due to chronic fatigue syndrome (CFS), which affected his attendance. Keays eventually went on disability benefits from October 1996 to December 1998, when the insurance provider determined he was able to return to work.

Keays came back to work but still experienced problems with drowsiness and continued to miss work. In August 1999, when his absences exceeded the number allowed by Honda policy, the company began to impose discipline. Keays claimed the absences were caused by his disability and Honda allowed him to participate in a company program for employees with disabilities recognized by human rights legislation. The program exempted employees from discipline but required a doctor’s note for each absence, a requirement not demanded of employees with regular illnesses.

Increased stress at work and the extra time needed to obtain a note for each absence led to more absences than expected for Keays. When he hired a lawyer and asked for a change in the note requirements, Honda cancelled his exemption and demanded he take a medical assessment. Keays refused and Honda fired him for insubordination on March 29, 2000.

The Ontario Superior Court of Justice found Honda’s requirement of a doctor’s note for every absence was “discriminatory and impractical.” The company’s refusal to accept his CFS as a permanent disability and its focus on production efficiency didn’t allow for the increased absences that came with his condition.

The Ontario Court of Appeal agreed with the lower court, finding Honda didn’t believe Keays’ condition was a legitimate disability and cancelling his participation in the attendance program as a reprisal. It agreed Honda discriminated against and harassed Keays.

The decisions in Keays raised concerns for HR professionals over the legality of requiring medical information for disability-related absences. Both the trial court and appeal court found Honda’s conduct in requiring a doctor’s note to account for every disability-related absence was discriminatory and therefore unlawful.

However, neither court made a distinction as to whether or not this applied to the circumstances of this particular case, raising the possibility that the common practice of requiring a note for any absence could be considered unlawful on general principle. So the HRPAO appeared before the Supreme Court in the appeal on Feb. 20 requesting a clarification of the matter.

Duty to accommodate the key issue

The trial judge in Keays was extremely critical of Honda, said Rudner, but he seemed to assume every absence was disability related. This could make the issue of accommodation more difficult to figure out for employers.

Most HR professionals aren’t medically trained and need doctors to determine which absences are disability-related, particularly when an intermittent disability is involved, said Rotstein. Without a means to do so, it’s difficult for an employer to determine when the duty to accommodate kicks in.

“We wanted to remind the court this is all part of the analysis of the duty to accommodate,” said Rudner. “Employees have to be part of the accommodation process and employers have a right to adopt measures to regulate attendance management.”

Rudner compared the issue of absences to another aspect of accommodation — undue hardship.

“No court has defined undue hardship because it’s different in every case,” said Rudner, identifying the crux of HRPAO’s argument. “The same should be applied to doctors’ notes for disability-related absences.”

Regardless of the specific facts of Keays, HRPAO argued there’s no general principle of law in accommodation. The association is pushing for the court to confirm that each case should be decided on its own facts.

Attendance management affected

Without doctors’ notes it would be challenging to distinguish between non-disability- and disability-related absences, making it difficult to effectively manage attendance, said Rotstein at HRPAO.

Without attendance management, absences would increase, leading to a decrease in productivity, not to mention morale issues, from employees without disabilities who see those with disabilities “picking and choosing” when they come to work, said Rudner.

HRPAO wanted to raise the issue of requiring a doctor’s note in the context of practical application in general and to stress the judgment should not become an absolute rule for all disability circumstances.

“There’s an old saying in the legal community: Bad facts often make bad law,” said Rudner.

A ruling is expected from the Supreme Court in a couple of months.

Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter. For more information visit

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