'Employers don't have to accept [a short medical note] necessarily at face value'
“Some employers don't realize what [medical] information they're entitled to – it's not just getting a one-line medical note putting somebody off for a significant period of time.”
So says Jessica Bungay, an employment lawyer and partner at Cox & Palmer in Fredericton, after a New Brunswick arbitrator upheld the termination of a worker for innocent excessive absenteeism.
“Employers don't have to accept [a short medical note] necessarily at face value, and they can go back and ask for more detailed medical information,” says Bungay. “And the longer an absence is, the more information they're entitled to.”
Medical leave
New Brunswick Community College (NBCC) has six campuses in various locations across New Brunswick. NBCC hired the worker in 2015 to be a custodial worker at its campus in Saint John.
The worker suffered from migraines and anxiety that was aggravated by lights and noise made by students. His supervisor suggested that he take breaks in a dark room, but it didn’t help. He also asked to work overnight shifts, but there had not been an overnight shift available since 2015 due to safety issues.
On Oct. 28, 2019, the worker provided a note from his family doctor stating that he was unfit to work with an estimated return-to-work date of Dec. 20. On Dec. 5, he provided a second note that changed his return date to Feb. 17, 2020. The doctor later indicated that the worker would be able to perform his regular work but also recommended that, if possible, the worker be switched to overnight shifts.
NBCC sent a letter to the worker requesting addiction medical information about his status, to which the worker’s doctor replied with a letter outlining the worker’s medical conditions – “migraines, headaches and generalized anxiety” that were expected to be permanent conditions but the worker could return to his full duties. The doctor reiterated that the worker’s attendance would improve if he could work evenings and overnights when the environment was quieter.
Recommendations discussed
NBCC discussed the recommendations with the worker, explaining that overnight shifts and dimming the lights weren’t possible for health and safety reasons, and the worker was already working evenings. It also said he could wear headphones to block out some of the noise.
Bungay praises the way NBCC discussed what the worker’s return to work would look like with him.
“An excellent thing they did was when the employee came back to work, they sat down and talked to him – explaining to the employee that there was no overnight shift, the possibility of dimming lights was a safety issue, and suggesting that he could wear headphones to lessen the noise,” she says. “So giving some flexibility and having a conversation with the employee as to what might make his return to work more successful.”
A B.C. employer discriminated against a worker when it terminated him for absenteeism when it should have known a mental disability was in play, the province’s human rights tribunal ruled.
Temporary return to work
The worker returned to his full hours and duties on Feb. 18. However, on July 17 he provided a medical note stating that he was totally disabled and his estimated return to work was Sept. 18.
The worker did not return in September and his doctor wrote another note indicating that he was still totally disabled and his estimated return was now Nov. 30. NBCC requested information about the worker’s medical condition and prognosis, and the doctor replied that the prognosis was unknown.
In October, the worker applied for long-term disability (LTD) benefits, but the third-party provider denied the claim on the basis that he wasn’t totally disabled – a decision to which the worker launched legal and human rights challenges.
In late November, the worker’s doctor provided another note stating that the end date of his total disability was Feb. 28, 2021. This was later extended another three months to May 30.
The LTD provider informed NBCC in March 2021 that the worker’s claim had been denied, but the worker had the opportunity to provide further medical information for an appeal. NBCC requested an update on the worker’s status, to which his doctor replied that his prognosis was still unknown. Two months later, the doctor indicated that the estimated return to work was Dec. 31.
An employee’s medical notes should be given precedence over surveillance of the employee’s activities in a decision to terminate for excessive absenteeism, an Ontario arbitrator ruled.
Additional medical information
NBCC handled the matter well by consistently following up with the worker’s doctor when it needed additional medical information to determine next steps, says Bungay.
“This is a common thing that employers are faced with – they will get these very brief medical notes that will place employees off work for a significant period of time due to illness,” she says. “In the initial absence and in the second absence, [NBCC] followed up and requested more detailed medical information, which is exactly the thing that employers should be doing when they receive these requests for long-term absences.”
On June 4, NBCC terminated the worker’s employment for excessive, non-culpable absenteeism without any prospect of a return to work in the foreseeable future. His total days of medical absence from 2019 to 2021 totalled more than 300, while the average for Saint John campus employees in the bargaining unit for the same period was about 36.
The worker saw a neurologist about one month after his termination and filed a grievance arguing that he was never offered accommodation. He also said that he was waiting for the neurologist appointment at the time of termination and NBCC was aware of it.
The worker did not provide a copy of the neurologist report until June 2022, even though NBCC and the union agreed to an extension of timelines to allow the gathering of additional information.
An employer’s request for more medical information was reasonable, says the BC Human Rights Tribunal.
Excessive non-culpable absenteeism
The arbitrator noted that the worker’s absenteeism was due to factors beyond his control, but employers may be entitled to terminate for non-culpable absenteeism if it is excessive to the point where it undermines or frustrates the employment relationship.
The arbitrator also noted that the worker’s estimated return to work at the time of his termination and prognosis were both unknown – the last extension to Dec. 31, 2021, would have put the worker’s latest absence at 17 months.
“The main reason [for the termination] was the prognosis – there was no prognosis that he would be able to return to work in the foreseeable future, and that was consistent with his action against [the LTD provider] and the human rights complaint that he filed,” says Bungay. “He consistently took the position that he was completely disabled and not able to return to work, so when you get to that prognosis… with no foreseeable return to work, that's when you can get to a frustration of contract or innocent absenteeism warranting termination.”
The arbitrator found no evidence that NBCC was aware of the neurologist appointment when it made the termination decision, as even the union couldn’t recall if it was told about it. Ultimately, the neurologist report was post-discharge evidence that wasn’t relevant to the termination decision, even had the worker provided it in a timely manner, said the arbitrator.
The arbitrator determined that there was nothing in the medical evidence at the time of termination that refuted the idea that the worker’s attendance was not going to improve.
Workplace safety is a consideration when determining if an employer can ask for additional medical information about an employee’s ability to return to work.
No prognosis
The arbitrator also found that the information in the doctor’s notes did not provide any specifics in terms of medical restrictions. The doctor suggested that evening and overnight shifts would help if possible but this wasn’t an accommodation recommendation, the arbitrator said.
Without any information on the worker’s capabilities, a reasonable expectation of a full recovery, or a return to work, NBCC’s duty to accommodate ended when it became apparent that the worker was no longer able to fulfill the basic obligations of his employment for the foreseeable future, said the arbitrator in dismissing the grievance.
“The lessons learned here on what employers can do is make sure they ask for that additional information and then do a thorough assessment once they have that information,” says Bungay. “Ask the questions that come down to, is the employee able to do the fundamental elements of their job – and it may be their absence from the workplace means they can't do that.”
“Maybe somebody can come back to work, but they have such significant medical limitations, they no longer can do the essential components of their job,” she adds. “If you get that information, then it triggers an analysis of whether there's any accommodation possible – so that's why getting detailed medical information is so key to employers.”
See CUPE, Local 5017 and New Brunswick Community College (Kirkpatrick), Re, 2022 CarswellNB 549.
