Employer/Employee workplace obligations Obtaining medical information Requiring independent medical exam Frustration of contract

1. ABSENT FOR MEDICAL REASONS:
MANAGING ILLNESS AND
DISABILITY-RELATED ABSENCES
Lior Samfiru, Partner
lior@stlawyers.ca
Agenda
 Employer/Employee workplace obligations
 Obtaining medical information
 Requiring independent medical exam
 Frustration of contract
 Questions

2. Dealing With Employee Medical Absences
NOW WHAT???

3. Dealing With Employee Medical Absences
NOW WHAT???

4. Dealing With Employee Medical Absences
LEGAL OBLIGATIONS - Employer
•Must allow employee to take time off for legitimate
medical absences, verified by physician
•Must provide accommodation of medical condition
•Must keep job open and available to employee –
unless undue hardship.
•What to do before accommodation can be assessed
•Does not have to continue benefit coverage (subject
to contract or collective agreement)

5. Dealing With Employee Medical Absences
EMPLOYER, DO:
• Listen to the Employee
• Work with the Employee
• Make business needs known
• Ask for medical information from Employee’s physicians
• Tolerate absenteeism that is disability related
• Accept a modified work schedule that is reasonable
• Be sensitive to Employee concerns
• Keep medical information confidential – Need to Know Only

6. Dealing With Employee Medical Absences
EMPLOYER, DON’T:
• Harass the employee for medical information
• Prefer employer’s opinion over medical opinion
• Send the employee to a company doctor, unless
exceptional circumstances
• Treat the employee as if she/he is malingering
• Discipline for disability related absence
•Intimidate or bully the employee
•Refuse to deal with employee’s lawyer

7. Dealing With Employee Medical Absences
LEGAL OBLIGATIONS - Employee
•The search for accommodation in the workplace is a
multi-party responsibility
•An employee seeking accommodation has three
responsibilities:
1. to actively cooperate with the employer and/or
the union in identifying possible modes of
accommodation;
2. to offer a reasonable explanation for his or her
refusal to accept a proposed accommodation; and
3. to accept a reasonable proposal that meets the
employer’s operational requirements

8. Dealing With Employee Medical Absences
Obtaining Medical Information
When are you entitled to medical information and how
much can you get?
•Whenever an employee asserts a medical basis for
absence or seeks to return to work after a period of
absence due to illness or disability
•Only to the extent that the evidence is relevant to the
employment relationship

9. Dealing With Employee Medical Absences
Obtaining Medical Information
•Subject to any collective agreement limitations, ask for
medical information when an employee asserts medical
reasons for an absence or seeks a return to work after a
medical absence
•Generally, the employer is entitled to know whether the
employee is fit, unfit, or fit with limitations
•If not satisfied with information, seek further clarification

10. Dealing With Employee Medical Absences
Information Employer is Entitled to:
• Prognosis for recovery, with or without limitations
• Opinion with respect to fitness to return to work
and to perform specific components of job
• Expected duration of any limitations or restrictions
• If completely disabled, details of prognosis with
respect to return to work

11. Dealing With Employee Medical Absences
Obtaining Medical Information
What should you keep in mind when communicating
with medical practitioners or the employee?
•Do you have the employee’s consent?
•Do you have a questionnaire?
•Do you have the job description or physical demands
analysis?
•Always practice tact and diplomacy.

12. Dealing With Employee Medical Absences
Obtaining Medical Information
Remember the lesson in Prinzo v. Baycrest
•Employee absent from work for several months and unfit to perform
her job
•Employer persistently urged a return to work, implying (incorrectly)
that her doctor had cleared her to return to work
•Employee’s lawyer wrote to employer demanding that employer not
communicate with her directly in future, but employer persisted
•When the employee did return to work, the employer insisted on
having a discussion about terminating her employment despite her
protests that she was in no condition to address the subject
•Result: Prinzo was awarded damages for “intentional infliction of
mental suffering”

13. Dealing With Employee Medical Absences
Obtaining Medical Information
What if the employee provides you with a flimsy doctor’s
note?
•Ask for more
•Explain why you need more
•Get the information you require
•Be reasonable; do not be a pest

14. Dealing With Employee Medical Absences
Obtaining Medical Information
How can you verify “invisible” conditions (e.g. stress, CFS,
non-organic pain)?
•Not all ailments have observable symptoms
•What is the context? Good employee with good record or
some basis for scepticism?
•Continue to insist on medical reporting
•Be reasonable; do not be a cynic
•If conflicting medical documentation, ask for independent
examination

15. Dealing With Employee Medical Absences
Independent Medical Examination
Can you compel an employee to be examined by a doctor
of your choosing?
•You can request an IME
•Absent agreement or authority (e.g. collective agreement),
you cannot compel an IME
•Inadequate medical information + refusal to undergo
reasonable IMA may = rightful dismissal, but be patient

16. Dealing With Employee Medical Absences
Independent Medical Examination
Request IME When:
•An employee leaves the day before (or after) disciplinary
meeting
•A medical condition is such that a specialist’s opinion is
required
•LTD insurer says one thing and employee doctor says
another
•Absence is particularly costly

17. Dealing With Employee Medical Absences
Confidentiality
•Keep medical information separate from the personnel file
•Provide written guidelines with respect to collection,
retention, storage, security, access, disclosure, and destruction
of health records to all personnel having access to health
records
•Transfer of medical records requires consent
•Generally, handling medical information is extremely sensitive
and must be kept in a secure environment

18. Dealing With Employee Medical Absences
Frustration of Employment Contract
In some situations - due to a lengthy absence, allowing
employer to treat relationship as being at an end.
•Would have to be very lengthy absence (usually measured
in years)
•Not likely to return to work in the future
•If employer has disability plan, lengthy absence within the
contemplation of the parties
•Remember: must still pay statutory termination
entitlements!

19. Dealing With Employee Medical Absences
Frustration of Contract
You may be sufficiently frustrated if:
•Absence is significant in comparison total service
•No contact from employee or repeated extensions to leave
•You have medical information to indicate that employee not
likely to return
•You have advised employee of impending end of relationship
•Absence causes you financial or administrative difficulties

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