Employers who deal with management of medical conditions and/or
disabilities in the workplace know that each issue must be dealt
with individually with particular attention to the specific facts
and circumstances of the case. Managing chronic illness (i.e.,
those that are persistent, recurring and long-lasting) at work can
be particularly challenging for employers due to the nature of the
condition, changes in symptoms and the degree or frequency of
Persistent illnesses can affect the employment relationship in a
myriad of ways and long-lasting medical conditions are often live
issues in workplace litigation including: human rights complaints
dealing with the duty to accommodate; wrongful dismissal claims
involving frustration of contract as well as labour arbitrations
where innocent absenteeism and accommodation are at issue. Broadly
speaking, to succeed in defending claims arising from chronic
illness employer have to prove: (a) the illness was persistent in
nature and was unlikely to improve and (b) continued employment/
accommodation would alter the essential nature of the employment
DISMISSAL FOR EXCESSIVE ABSENTEEISM
In a recent (March 2015) arbitration award, Ontario Public
Service Employees Union (Bartolotta) v Ontario (Children and Youth
Services), 2015 CanLII 19329 (ONGSB), the grievor was a youth
services worker who was dismissed for "innocent, non-culpable
absenteeism and frustration of the employment contract" due to
extended absences resulting from a chronic back condition. Although
the arbitrator recognized that the grievor was a good employee when
he was able to attend at work he suffered from a chronic
multi-level degenerative disc disease that caused him to take 310
sick days over a 4-year period. While sympathetic to the grievor,
Arbitrator Tims held that the employer accommodated the grievor to
the point of undue hardship and, on the facts of that case,
was not required to accept his ongoing absenteeism. She
The employer had proven that the grievor's record of
absenteeism was excessive and that his absenteeism would likely
Warnings that his employment was in jeopardy were
The grievor's excessive absences and their likelihood of
persistence were such that he was not able to fulfill the basic
obligations associated with the employment relationship for the
Requiring the employer to continue to accept the excessive
absenteeism would alter the fundamental essence of the employment
contract (i.e., attendance at work and performance of duties in
exchange for wages and benefits).
Although this is a helpful case for employers, chronic illnesses
in the work in the workplace are particularly difficult to manage
and each situation must be considered on its unique facts, keeping
in mind the nature of the condition, the job the employee performs
and characteristics of the workplace. Our experience suggests that
the following basic steps should be followed when dealing with
employees with persistent medical conditions:
Be proactive – engage with the
employee and the union (if applicable) at the early signs of
chronic illness or patterned absenteeism. Often times accommodation
at an early stage can avoid conflict down the road.
Consider the evidence – work
collaboratively (to the extent possible) with the employee and
their care providers to obtain relevant medical information that is
specific to their limitations and to your workplace. Follow up
regularly and review that information with the employee.
Think creatively and "outside the
box" – consider the functional and
attendance-related limitations – are there any alternative
positions the employee could fulfill? If not, is there a
combination of productive tasks they could fulfill without
completely disrupting the workplace?
Show your work – from the outset,
keep detailed notes about managing the illness at the workplace
such as notes about accommodations considered, the response(s) of
the employee and, on an ongoing basis, how the efforts to
accommodate are impacting the workplace (good and bad).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).