The obligation to accommodate an employees’ legitimate absence from work because of illness is legislated in the Ontario Human Rights Code. While Employer’s have an obligation to accommodate illness a worker has a similar obligation to participate in their return to work plan.
Where an Employee is able to return to the same job performed prior to their medical leave they are obliged, if requested, to demonstrate fitness. This generally requires an employee produce a medical note from their treating physician confirming fitness for the work they are assigned.
The right to demand a medical note confirming ability to return to work was addressed by the British Columbia Provincial Court in Grikinis v. Mid-City Roofing & Sheet Metal Employees’. Ralph Grikinis was a sheet metal tradesman; he worked for Mid-City Roofing & Sheet Metal for six and one-half years when he had heart attack and took six months off work.
Mr. Grikinis insisted he was able to return to work. When the employer asked him to provide medical confirmation he refused indicating he should be able to say he was fit without necessity to give medical reports because he had been with the employer for almost seven years.
The Employer terminated Mr. Grikinis’ employment when he failed to provide confirmation of his ability to return to work.
The Court dismissed Mr. Grikinis’ claim for notice and damages indicating the Employer is entitled to ensure an Employee is able to perform the work they are assigned; this is especially so when the work is physically demanding.
Accommodation requires active participation by both the Employee and Employer.
An Employer is required to make special allowances to accommodate reasonable work restrictions. So long as accommodation does not impose undue hardship on the organization the Employer must implement suggested changes so that the Employee can return to work. This may mean reduced hours of work or a graduated return to work schedule increasing over time. Recent decisions of the Supreme Court of Canada have placed the burden on employers to demonstrate how providing accommodation will cause undue hardship (usually by compromising safety or jeopardizing the organization’s solvency.).
Similarly – an Employee must provide medical information and give feedback into accommodation needs while keeping in mind that the Employer has the right to manage the workplace. Accommodation need not be the Employees’ “best plan”. So long as the Employer is acting reasonably and the return to work plan meets the Employees’ limitations, the worker will be required to return to employment.
The average Canadian worker is absent from the workplace the equivalent of almost two full work weeks per annum. These absences, which range from time off for minor illnesses to longer-term leaves of absence, cost the Canadian economy approximately $16.6 billion in 2012. Managing the return to work process is essential to ensuring a successful reintegration of workers. This requires good faith by both the employer and employee.
