Worker didn't respond and company had documented evidence of modified work offers
“If an employee is able to work and isn’t providing medical evidence to the contrary but doesn't come to work, that’s job abandonment.”
So says Lauren Barteluk, an employment lawyer at Carbert Waite in Calgary, after the Alberta Human Rights Tribunal upheld the firing of a worker on medical leave for not participating in accommodation efforts or communicating with the employer during her medical leave.
The worker was a part-time salad clerk at a Loblaws grocery store starting in 2011. On Oct. 18, 2018, she sustained a work-related injury to her right shoulder, elbow, and arm, that stemmed from repetitive motions. She tried to come back to work four days later, but the injury proved to be too much and she had to leave work early. She didn’t return to work after that.
The worker claimed workers’ compensation benefits, which were denied. However, the Alberta Workers’ Compensation Board (WCB) eventually accepted her claim in March 2020, retroactive to Oct. 25, 2018.
The worker provided a medical note dated Oct. 24 to Loblaws indicating that she was unable to or was limited in performing tasks such as lifting, pushing, pulling, and overhead reaching. However, she was able to do things like sitting, standing, walking, bending, twisting, kneeling, squatting, and climbing.
Employer offered modified duties
Loblaws offered the worker modified duties such as customer assistance, checking code dates, facing products on shelves, and other tasks within her stated restrictions. The worker didn’t respond and the company made another offer, to no avail.
The worker responded to calls from Loblaws on Nov. 1 and discussed modified work, with the company stressing that it needed medical information regarding her limitations.
The worker provided additional medical notes reiterating her abilities and limitations on Nov. 27, Dec. 5, Dec. 11, and Dec. 19. Loblaws offered modified duties again in December, but the worker still didn’t respond. The company called her and left voicemails on four different occasions without a response.
The worker didn’t communicate with Loblaws any further, so Loblaws sent her a letter stating that she was absent without sufficient medical information.
The worker still didn’t respond, but on Jan. 4, 2019, a physician completed a functional abilities form stating that the worker was fit for modified duties. Loblaws also received two WCB physician reports in January and February that indicated restrictions and certain abilities. The company reached out to the union because it hadn’t heard from the worker, and the union was able to contact her husband, who said she intended to return to work and would contact the company. However, the worker didn’t reach out.
Worker uncooperative with accommodation efforts
On March 17, the company sent a letter to confirm the worker’s employment status with a deadline for a response. The worker’s legal counsel replied with a medical note stating that she was “unable to work” without any reference to modified duties.
In September, two medical notes were provided indicating that the worker was unable to work at her usual duties and outlined her restrictions.
In early 2020, Loblaws attempted to set up a work planning meeting, but the worker failed to co-operate or attend. The company sent another offer of modified duties and, on March 29, the WCB wrote to the worker advising that Loblaws was offering suitable modified work, and the medical reporting supported that the worker could perform modified duties.
On May 13, Loblaws’ claim support provider advised that the worker continued to be fit for modified duties, while the WCB stated that her doctor had provided medical information supporting the same.
However, the worker – who was only communicating through her husband - maintained the position that she hadn’t been cleared to return to any work. The WCB was also having trouble contacting the worker.
“What’s noteworthy and ultimately beneficial for [Loblaws] is that they made multiple attempts at communication - even when the worker didn't respond, the company had documented evidence of letters that they had reached out and made modified work offers, and said what would happen if she didn’t comply,” says Barteluk. “That's always what I recommend employers do, is make multiple attempts at communication, and then they set themselves up to be in a position to terminate down the road.”
Medical information supported modified duties
Based on the fact that the worker’s medical information indicated she was capable of modified duties and Loblaws offered her appropriate modified duties, the WCB stopped the worker’s benefits on June 4. On June 30, Loblaws ordered the worker in a letter to provide updated medical information by July 10 so it could provide modified duties. The worker didn’t accept delivery of the letter and never picked it up.
Loblaws tried again unsuccessfully to contact the worker, and the union advised that she hadn’t responded to its communication efforts. On July 22, it advised the worker that her employment was terminated for abandoning her position by failing to provide appropriate supporting documentation for her absence.
The WCB continued to try to contact the worker about her ability to perform modified duties, but its calls were blocked.
On July 22, 2021, one year after her termination, the worker filed a human rights application alleging that Loblaws discriminated against her on the ground of physical disability.
The tribunal noted that, pursuant to the one-year limitation period established in the Alberta Human Rights Act, only events occurring from July 22, 2020, onward were considered for the purposes of determining whether discrimination occurred.
Accommodation offers
The tribunal found that the medical evidence demonstrated that the worker was unfit for her pre-injury duties but fit for modified duties. Loblaws made several offers of modified work, but the worker didn’t respond to these offers.
Medical documentation, including reports from physicians and the WCB consistently indicated that the worker was fit for modified duties from at least November 2019 onward, and it appeared that the worker and her husband were under the impression that an inability to perform pre-injury work was the same as an inability to perform any work - a position not supported by the medical evidence, said the tribunal.
“Where you have an employee like this essentially taking the position that they’re unfit for any work but the medical evidence shows otherwise, the employer has the absolute right to demand some medical evidence that proves it,” says Barteluk. “This case sets out in a high-level way how an employer can go about demanding medical evidence and then what happens if it's not provided.”
The tribunal also found that Loblaws made “concerted, repeated, and reasonable efforts” to communicate with the worker and to accommodate her disability with modified duties, but the worker failed to provide sufficient medical documentation or to maintain communication to facilitate accommodation.
Referring to the three-step test for prima facie discrimination, the tribunal said there was no doubt that the worker met the first two steps – she had a characteristic protected by the act and suffered an adverse impact. However, the worker didn’t provide any evidence linking the decision to terminate her employment with her disability, while Loblaws provided clear reasons for the termination - abandonment of employment because of a failure to communicate or provide appropriate medical information, said the tribunal.
Reason for termination was job abandonment
“[Loblaws] tried to accommodate and they tried to communicate the offers of modified duties, but the worker didn’t accept or communicate,” says Barteluk. “[The worker} didn’t obtain the medical evidence demanded to by the company, so Loblaws was able to easily demonstrate that the worker was fired for being non-responsive and not participating - because there was modified work available but the employee wasn’t showing up, the company was able to demonstrate quite easily that the worker abandoned her job.”
The tribunal further found that, even if prima facie discrimination had been established, Loblaws fulfilled its duty to accommodate to the point of undue hardship. The Supreme Court of Canada established that the search for accommodation is “a multi-party inquiry” and the worker had a duty to participate in the process, said the tribunal in finding that the worker failed in her duty to co-operate and dismissing the worker’s application.
The case is a good example of an employer being put in a difficult position and taking a careful, measured approach, according to Barteluk.
“I think a lot of employers are often very nervous - and rightfully so - to terminate when an employee has a disability of any kind,” she says. “But this is a situation where the employer fulfilled its duties and obligations, made the attempts at communication, and despite the worker not responding, it clearly documented and fulfilled its end of the duty to accommodate.”
“At the end of the day, an employee doesn’t have to accept an accommodation of modified work, but if they don't accept that offer, they're at risk of losing their job for a non-discriminatory reason.”
