'The bottom line is you need the medical upon which to determine what you have to do': lawyer
“The goal of accommodation is to get the employee back to their pre-injury position - it's not just to find them a job that they like or they think they can do - and that inquiry is based on objective medical evidence.”
So says Lorenzo Lisi, head of the Workplace Law Group at Aird and Berlis in Toronto, after the Ontario Grievance Settlement Board dismissed a grievance alleging that a public-sector employer failed to accommodate a worker by stalling her graduated return to work and requesting an independent medical examination (IME).
The worker started employment in 2005 with the Ontario Ministry of the Attorney General as a court reporter at the London, Ont., courthouse. On Oct. 24, 2018, she was injured in an accident while off-duty. Her injuries caused her to be off work for more than two years.
On Aug. 22, 2019, the ministry’s third-party insurer medically cleared the worker to begin a gradual return-to-work (GRTW) plan with the expectation that she would be able to return to full-time hours on Sept. 23. However, the worker said she didn’t want to participate in a GRTW and would return to full-time work on Sept. 23.
The worker later provided medical evidence from her doctor that she wasn’t yet fit to return to work, so the ministry allowed her to remain on medical leave.
Graduated return to work
In October 2020, the worker informed the ministry that she was improving and she wanted to return to work. Her occupational therapist (OT) completed a form recommending four hours per day, 20 hours per week, with no estimation of how long that should last. The OT completed a second form in January 2021 that the ministry found to be unclear, so it sought additional information.
The ministry and the union developed a GRTW plan in March 2021, which included remote work for four hours a day and regular check-ins with her supervisor. Her duties involved a single project collecting fees from estate files from the pandemic, which was a small part of her regular job duties.
The worker agreed to gradually increase her hours and duties and she wanted to return to full-time hours quickly, but her manager expressed concerns about her progress in handling the estates work, noting difficulties with learning new tasks and retaining training.
By October 2021, the worker was working 5.5 hours per day with expanded duties and sought to increase her hours further. However, there were still concerns about her progress, with the worker acknowledging that she had difficulty grasping all elements of estates training. Management noted that the worker had “mild cognitive impairments impacting cognitive task tolerance, speed of work output and executive function skills.” The ministry requested updated medical information before approving additional increases in hours and duties, as the information from the OT didn’t clearly define her restrictions and limitations or any timeline of expected progression.
On Feb. 2, 2022, the ministry formally requested that the worker undergo an IME to clarify her prognosis and ability to resume full-time duties. The collective agreement allowed the ministry to request an IME if necessary to obtain medical restrictions and limitations.
Worker resisted IME
The worker said that estates work was complex and there were deficiencies in her training. She also was concerned about why her OT wasn’t involved in the IME process, with the OT suggesting that the request was a retaliation for privacy concerns she had raised earlier. The worker said she would complete the IME if their concerns about the IME’s focus were addressed, such as if it considered her job requirements.
The ministry responded that since she was refusing an IME, it wouldn’t progress with her training any further until she agreed to it. The worker signed the IME consent form but said it was “under duress,” so the ministry didn’t accept and reiterated the requirement for an IME.
Over the next several months, the worker became frustrated with the lack of progress in getting her back to full-time work. The ministry told her that it hadn’t received the equired medical information from a doctor and that was why it requested an IME.
The worker finally signed the IME consent form without conditions in November 2022 and attended the IME on Feb. 13, 2023, which was performed by a licensed psychologist. The psychologist found that the worker had significant impairments in verbal and visual memory, executive functioning, working memory, and selective attention, concluding that the worker would “not be able to execute the duties of a court and client representative” as listed in the job description.
The union filed a grievance alleging that the ministry breached its duty to accommodate the worker under the Ontario Human Rights Code and the collective agreement when it asked the worker to submit to an IME and stopped increasing her hours under the GRTW plan. The union argued that the ministry failed to clearly communicate expectations, didn’t adequately consider restructuring work to meet the worker’s accommodation needs, and didn’t explore less intrusive options than the IME.
Employer met its duty to accommodate: board
The board found that the ministry co-operated with the union and the worker in developing and implementing a GRTW plan, provided appropriate training and support, and communicated regularly with the worker. The ministry’s concerns about the worker’s progress were based on observed difficulties performing her duties rather than unmet specific targets that had been set, said the board.
“The accommodation process is aimed to get the employee back to the duties of their regular job, and she wasn't doing the duties of her regular job - they were giving her accommodated duties, with which she was struggling,” says Lisi.
The board also noted that the worker didn’t raise any concerns about her training until after the ministry expressed its own concerns about her progress and requested more information and eventually the IME. In addition, management didn’t communicate expectations because there were no specific goals – they wanted the worker to progress in her hours worked and grasp the work, so specific expectations or telling the worker their concerns about her work wouldn’t have helped her, the board said.
The board also found that the ministry frequently communicated with the worker, including its position that the medical information from the OT wasn’t enough and it needed more regarding her prognosis. The ministry didn’t have to consider less intrusive options, as it was entitled under the collective agreement to request an IME in the circumstances – the worker hadn’t provided information from a doctor for a long time, the board said.
In addition, the ministry acted in good faith throughout the accommodation process – developing the GRTW, gradually increasing the worker’s hours, and communicating with her frequently - the board said in finding no evidence that the ministry failed to accommodate the worker to the point of undue hardship.
Good faith in the accommodation process
“The critical part is that the employer is expected to act in good faith and meet both the procedural and the substantive elements of accommodation, at least in Ontario,” says Lisi. “Procedurally, you have to look for work to give the employee, and substantively, once you review appropriate jobs that could be done within the employee’s restrictions, then you need to implement it - given the struggles the worker was having in her work, the ministry needed to know whether the process could continue or whether the worker would have to be accommodated in another way.”
The grievance was dismissed.
The case is a good example of an employer who did things right in the accommodation process, according to Lisi.
“Somebody worked with the worker to try to get information and work towards an accommodation, and when they got to the point where that accommodation didn't seem to be working, they looked at the file and found little medical information beyond the OT – who’s an advocate for the worker,” he says. “I think the arbitrator took a lengthy view, not only of the facts, but also the law of accommodation.”
In addition, when developing a GRTW, employers need the appropriate medical information to determine the appropriate level of accommodation, says Lisi.
“You need the medical [information], you need the restrictions from the doctor - that's why we have these functional ability forms that doctors get, that ask for a list of the restrictions so the employer can look at its workplace and determine what is an appropriate GRTW program,” he says. “The bottom line is you need the medical upon which to determine what you have to do, and when you get to the point where GRTW stalls, you need to either seek more medical or take the position that we can't return you to your pre-injury employment.”
See OPSEU and Ontario (Ministry of the Attorney General) (Oct. 3, 2025), Docket 2022-7028 (Ont. G.S.B.).
