Dueling with Doctors: Handling Questionable Medical Leaves

Dueling with Doctors: Handling Questionable
Medical Leaves in the Workplace
July 10, 2013
Presented by: Matthew Vella, LL.B., LL.M.
Vella LPC, Labour & Employment Lawyers
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TOPICS
• What is a Code Protected Disability?
 Physical Disability
 Mental Disability
• Managing a questionable claim
 Questionable circumstances
 Poor medical evidence
 The duty to accommodate
 The doctor’s right to dictate outcomes
 Independent Medical Exams (IMEs)
• Frustration of Contract – Ending The Relationship

THE HUMAN RIGHTS CODE
• Section 10 sets out the definitions
• “disability” means,
• (a) any degree of physical disability, infirmity,
malformation or disfigurement that is caused by bodily
injury, birth defect or illness and, without limiting the
generality of the foregoing, includes diabetes mellitus,
epilepsy, a brain injury, any degree of paralysis, amputation,
lack of physical co-ordination, blindness or visual impediment,
deafness or hearing impediment, muteness or speech
impediment, or physical reliance on a guide dog or other
animal or on a wheelchair or other remedial appliance or
device,
• (b) a condition of mental impairment or a developmental
disability,

THE HUMAN RIGHTS CODE
• Note the breadth of these definitions. “Any degree of physical
infirmary” was once held by a labour arbitrator to include a
broken wrist.
• We have since seen a shift in the other direction, with such de
minimus conditions being taken off the list of Code protected
disabilities in favour of more serious conditions. Some
Human Rights adjudicators have stated that allowing for such
minor conditions trivializes the Code’s quasi-constitutional
nature. But be aware, the definition is still the definition. There
is closed list of what is or is not a disability.
• The definition of Mental disability is very unhelpful, “a
condition of mental impairment” could technically include a
hangover, so we need to seek other sources for the true
definition. Case law is helpful but is always evolving.

MENTAL DISABILITY
• The Canadian Human Rights Commission provides
some guidance on defining mental disability:
Alterations in thinking, mood or behavior – or some
combination thereof – associated with significant
distress and impaired functioning.

MENTAL DISABILITY
• This definition is helpful in that it provides a requirement
that there be “significant distress or impaired
functioning”.
• Some examples of mental disabilities:
Stress/anxiety disorder (if it reaches a certain level)
Bi-polar disorder
Depression
Post traumatic stress disorder
**NOTE: This is an open list. Any mental disorder can
be Code protected.

MENTAL DISABILITY
• Some problematic examples:
 I hate my boss!! (don’t we all?)
 I can’t keep up with my workload
 I am being micro-managed and it is causing me anxiety
 The company is terrible, I can’t make sales because the
product is no good, this is causing me stress and anxiety
These become serious issues when a doctor provides
medical notes substantiating that the issues is a “disability”.

Registrant Question
“One particular issue we have been struggling with is
doctor's writing medical notes (or assessments) indicating
that patients are totally disabled by mental illness, and
need to be off indefinitely. How do we better manage these
claims?”
- Melanie from Cooksville, ON -
8

FACT SCENARIO
• Amy is an outside sales rep. She spends a good deal of time on the
road. Her manager asks her to start regularly reporting what she is
doing with her time. Her reports are vague and not overly
productive. She receives a negative annual performance review,
blows up on her manager in the meeting and the next week she:
 Provides a medical note stating “Amy cannot attend work for 8
weeks due to stress” AND
 Submits a lengthy workplace harassment complaint against her
manager which, in reality, does not allege a single bona fide
ground of harassment but simply complains about the company
and lack of sales support as well as micro-management issues

THE CHICKEN AND THE EGG
• There is a tendency to think:
“Amy is faking a medical issue because she got in trouble at
work and doesn’t want to get fired”
• That may well be true, but beware the chicken & the egg
problem.
• Perhaps Amy is faking a stress leave to avoid workplace
discipline for sleeping in her car all day rather than meeting
clients. OR
• Perhaps Amy has been sleeping in her car all day and
underperforming at work because she has a mental illness
which she did not inform the employer of until she was
disciplined.

A FURTHER TWIST
• Upon the employer’s request for further medical evidence
Amy’s doctor provides a letter which says that the sole cause
of Amy’s anxiety disorder is workplace harassment. The
doctor mandates, in writing, that Amy be provided a new
manager as an accommodation.
• PROBLEM: We read the workplace harassment complaint. In
10 pages (typed), there was not one real allegation of
harassment.
• Issues:
 Does Amy have a medical disability? Is it a mental
condition to hate your boss?
 Can the doctor dictate the accommodation for Amy?
 What evidence is the employer entitled to, and what are its
legal obligations?

IS THIS A DISABILITY?
• Look back to the chicken & the egg problem. In a way, this
issue is a red herring, but alternatively it can cause a lot of
problems:
• Whether or not Amy has a disability no longer matters. She
has a doctor’s letter saying she has one, and therefore the
employer must treat her as if she does, at least until it has
better evidence and more information.
• If the employer acts from a preconceived notion that Amy is
faking the illness, the employer will tend to act too
aggressively. This can cause significant exposure to liability.
• The employer must treat this as a bona fide medical leave for
the time being.

IS THIS A DISABILITY?
• Further, one must consider the fact that an employee
who throws a temper tantrum in a meeting and who then
files a lengthy harassment complaint in the nature of
Amy’s may well have a mental disability. These are
indicators that Amy has a problem, and rather than
looking at this as “whether Amy’s hatred of her boss
constitutes a medical condition” we should also consider
“whether Amy’s hatred of her boss is the symptom of a
medical condition”.
• The facts from a prominent Supreme Court of Canada
decision are illustrative

Registrant Questions
• “Are there legal consequences to physicians that submit medical
forms or documents, on behalf of their patient, that are untrue?
Especially if the medical leads to approved paid medical leave from
work, long term disability, or workplace accommodation?” (Andrea
from Prince George, BC)
• “An employee submits a Dr.'s note that says "medical leave for 16
weeks" and no further information provided by the Dr. or employee.
Does the employer have the right to request further information or
call the Dr. to confirm the leave?” (Emily from London, ON)
• “How to demystify medical notes when the Doctor is being very
vague about prognosis.” (Richlyn from Brampton, ON)
14

Hydro-Quebec
• In this case the Supreme Court dealt with an employee who had 960
absences over a 7 year period and who was constantly in conflict
with her co-workers and management. The conflict stemmed from a
bi-polar disorder.
• The complainant’s doctors in Hydro-Quebec insisted that she could
work, if the following conditions were met:
• [the employee can] work in a satisfactory manner provided that it is
possible to eliminate her stressors – both those related to her work
and those arising out of her relationship with her immediate family-
that affect her and make her unable to work.

Hydro-Quebec
• The doctors recommended that:
the employer periodically, on a recurring basis, provide the complainant
with a new work environment, a new immediate supervisor, and new
co-workers, to keep pace with the evolution of the love-hate cycle of
her relationships with supervisors and co-workers
• The court found that this recommended accommodation was not
required of the employer.
• In my opinion, this ridiculous medical opinion shows how far doctors
are willing to go to help their patients without any real grasp on the
reality of a workplace.

DEALING WITH MEDICAL EVIDENCE
• We have all seen the following prescription pad note:
Andrew cannot attend work, 5 weeks, stress/illness
• Does the employer have to accept this? NO
• But beware the common misconceptions that may lead an employer
down the wrong path:
 The employee is faking it because he or she got in trouble at
work
 The employee has personal issues and that’s not the company’s
problem
 The letter should be ignored and just leave the employee alone
for 5 weeks

• Each of the above are common first impressions.
• Each should be ignored, even if they are factually sound.
• The employer must begin the process of accommodation
whether or not it feels that the employee is faking the
claim. An employee with medical evidence should be
treated as requiring accommodation from the outset
unless the medical evidence is clearly and unequivocally
fake, false, or incorrect.

THE DTA
• The employer has a legal duty to accommodate it’s
employees. That duty has two aspects. The first aspect
is often overlooked.
The substantive duty to accommodate
The procedural duty to accommodate

• The procedural duty to accommodate requires that the employer :
 Obtain all relevant information about the employee’s disability
 This can include prognosis for recovery and ability to perform job
duties and capabilities for alternate work
 Seriously consider how the employee can be accommodated
and what steps can be taken to get the employee back to work
This legal obligations requires that the employer obtain better
medical evidence. Acting based on only the hand scribbled note is
not recommended. The medical note does not allow the employer
to properly assess return to work options or accommodations.

SEEKING BETTER MEDICALS AS PART OF
THE DUTY TO ACCOMMODATE
• In a case like this, the employer should:
 Provide the employee with a written request for better medical
evidence, including provision of a Functional Abilities Form (FAF)
for his doctor to fill out which sets out his restrictions, treatment
and prognosis for recovery. The FAF should include a release
allowing the employer to deal directly with the doctor with
respect to the matter on a going forward basis.
 The FAF should be accompanied by a written job description
setting out the employee’s daily tasks so that the doctor can
provide insight into what he can and cannot do.
 The FAF and letter to the doctor should also include a request
for a schedule of the employee’s follow up visits and should
request updated medicals.

STATISTICS
• Statistics show that once an employee has been off work
for 12 weeks the employee is 80% less likely to return to
work than an employee who is off for less time. Every
week that the employee is away, the less likely he or she
will ever return.
• It is imperative that the employer begin managing this
issue right away.
• Many employers take the first 5 week absence note and
follow a “do nothing approach”. They will then get
another 5 week absence note in 5 weeks, and are by
then behind the clock on dealing with this.

ACCOMMODATION IS A TWO WAY STREET
• Just as the employer has a legal obligation to make an informed
decision, the employee has a correlative obligation to provide
reasonable medical evidence and to inform the employer of his or
her circumstances. “accommodation is a two way street” and the
Human Rights Tribunal and Ministry of Labour are willing to enforce
that duty against the employee if the case is managed properly.
• The employer should, in the request for better medicals, note the
employee’s duty and state that due to the employer’s legal
obligations to make informed decisions, the employer requires the
FAF and further medical evidence.

Registrant Question
“Please discuss the role of independent medical
assessment and duty to accommodate.”
- Sue from Halifax, NS -
24

INDEPENDENT MEDICAL EXAMS
• You DO NOT have an unqualified right to make an employee undergo
an IME. There are serious privacy issues at play. Generally speaking,
an employer may not force an employee to undergo an IME unless:
 The employer provides its is own self insured Short Term Disability
insurance which the employee is collecting from. The employer
therefore steps into the shoes of an insurer and may have more
rights to seek an IME; OR
 The contract of employment specifically and unequivocally allows
for an IME if an absence exceeds a certain length of time; OR
 A collective agreement allows for an IME
If none of these factors exist, you can request an IME but the
employee is likely within his or her rights to refuse it. Also note that
simple workplace policies allowing for an IME may not be effective
(unless there is also a self insured STD plan in place)

THE SUBSTANTIVE DUTY TO ACCOMMODATE
• The substantive duty to accommodate dictates that once
the employer has turned its mind to the situation, it
provide the employee with the most suitable
accommodation possible that will avoid “undue hardship”
to the employer.
• Note the word “undue”, this means that employers are
expected to suffer some hardship. Inconvenience will
get you nowhere. There must be verifiable hardship that
is “undue” before the DTA is met and the employer’s
onus discharged.

Registrant Questions
• “How do you challenge a doctor's note which you think is
too aggressive on specifying time off for an employee?”
(Norm from Edmonton, AB)
• “When do you think it's appropriate to request an
Independent Medical Opinion and how to handle it with
the employee.” (Margarita from Mississauga, ON)
27

The DUTY TO ACCOMMODATE
• In Hydro-Quebec the SCC put it well:
In a case involving chronic absenteeism, if the employer shows that,
despite measures taken to accommodate the employee, the employee
will be unable to resume his or her work in the reasonably foreseeable
future, the employer will have discharged its burden of proof and
established undue hardship. If the characteristics of an illness are such
that the proper operation of the business is hampered excessively or if
an employee with such an illness remains unable to work for the
reasonably foreseeable future even though the employer has tried to
accommodate him or her, the employer will have satisfied [its legal
obligation]. The duty to accommodate is therefore perfectly compatible
with general labour law rules, including both the rule that employers
must respect employee’s fundamental rights and the rule that
employees must do their work. The employer’s duty to accommodate
ends where the employee is no longer able to fulfill the basic
obligations associated with the employment relationship for the
foreseeable future

THE DOCTOR’S ORDERS
• A prevailing (and quickly growing) problem is that doctors are trying
to usurp the employer’s obligations and pre-empt the
accommodation process by dictating results.
 Doctors are trying to help their patients by “prescribing” whatever
the patient wants. Medical notes state that the employee must
report to a new supervisor or that the employee must work in a
certain location or that the employee must be allowed to come to
work at a certain time of day. In my opinion these are factual
conclusions about accommodations, they are not medical
opinions within the scope of the doctor’s mandate.
 Doctors are going well above their expertise. Can a GP certify a
6 months absence for “severe stress disorder” without referring
his patient to a therapist?
 Doctors are taking their patient’s subjective complaints at face
value without being able to properly assess diagnosis

• You do not have to take the doctor’s word as gospel. It is the
employer’s obligation, and the employer’s right, to come up with a
proper accommodation. The doctor’s job is to provide the functional
limitations of his or her patient, not to say that the patient must
receive a specific accommodation.
• Seek better evidence, seek functional restrictions, and base your
accommodation decisions on those medically relevant restrictions,
not on non-medical conclusions made by the doctor.
• Seek to ensure that the employee is receiving proper care and
treatment. There is some obligation on the employee to try and get
better
• ALWAYS watch your language. Have counsel draft letters on these
matters. These letters may end up before a human rights
adjudicator, your tone and the way you make these requests is very
important

• If you continue to receive vague and useless medical
notes, ask a series of directed questions:
Can Amy work restricted hours?
What are Amy’s abilities with respect to memory,
dictation and ability to work with others?
Can Amy handle normal workplace stress if she does
not have to deal with clients directly?
The more information the better

DUELING WITH DOCTORS
• In some circumstances a lack of proper medical evidence can
be the cause for serious concern and can lead to discipline or
dismissal of the employee but that is a very serious matter
and should only be done in direct consultation with legal
counsel who are experienced in this field
• This can become a chess match between the doctor and the
lawyer(s). Every move is important. You must exercise
patience and watch your candor.
• Be mindful of the fact that there is such a thing as
unreasonable requests or unreasonable amount of requests.
The employee cannot be harassed if he is cooperating

Registrant Question
“How long can an employee be on medical leave for - 2
months, 6 months? Is there a cap that we can put in our
company policy regarding this?”
- Juno from Toronto, ON -
33

FRUSTRATION OF CONTRACT
• Look back to the quotation from Hydro-Quebec. It deals directly with
frustration of contract. But it is also just a broad statement and does
not fully set out the law.
• Frustration of contract for a medical disability can be extremely easy
to prove in some cases and extremely hard in others.
• The employee must be unable to perform the essential duties of his
job or any reasonably available job, with or without accommodation
up to the point of undue hardship AND
• The employee must have no reasonable prognosis for recovery

FRUSTRATION OF CONTRACT
• This last aspect is problematic because doctors will frequently certify
a return to work in 6 weeks but will do so every 6 weeks, thereby
always providing a prognosis for recovery.
• Several court cases state that the general time an employee must
be off work is 2 years
• There may be other circumstances that vitiate a frustration of
contract argument as well. For example, the receipt of LTD benefits
may stop an employer from alleging frustration
• Note that an employee whose contract of employment is frustrated
is still entitled to ESA 2000 payouts pursuant to the Court’s decision
in

IMPORTANT NOTE
• These matters are extremely complicated and can lead
to significant liability. Each mental disability case is as
unique as the person suffering the illness and the
company dealing with it. Legal advice should be sought
for any such case.
• This presentation touches on many much larger topics.
For a more detailed paper on this subject, or if you have
any questions regarding the presentation, please email
me at mvella@vellalabourlaw.com

QUESTIONS?

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38

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Thank You For Attending
For questions, please contact Maysa Hawwash
National Manager, Talent Management Solutions
mhawwash@na.drakeintl.com
416.216.1067

Dueling with Doctors: Handling Questionable Medical Leaves

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