Disability management is a
challenging issue for HR professionals. An employee with a
disability may require an extended absence from work due to their
medical condition. Where an employer provides disability benefits,
the employee will be required to show that they meet the definition
of disability under the insurance policy, which will require the
disclosure of medical information. A recent decision from the
Ontario Superior Court addresses the issue of when an employee is
considered to have abandoned their employment where they fail to
comply with requests for medical information and also refuse to
return to work.
In Betts v IBM Canada Ltd., the
plaintiff had been employed by IBM Canada for 15 years. He suffered
from depression and was absent from work as a result of his
illness. His employer advised him of the process to apply for
disability benefits, which were administered under a policy with
Manulife Financial. The employee had applied and been approved for
disability benefits in the past.
The employee worked and resided in
New Brunswick. He moved to Mississauga in order to live with
his fiancée. This move occurred while he was applying for
disability benefits. He did not notify his employer or the
insurance company of the move. Under the terms of the policy, he
was required to seek approval from the insurance company case
manager prior to a change in place of residence.
Despite being instructed as to the
necessary steps for his disability benefits application, the
employee failed to provide the necessary documentation within the
timeframes outlined in the policy, and his claim was denied. He was
provided with a further opportunity to submit the necessary medical
information. He submitted documentation prepared by a psychologist
in Mississauga who starting treating him after his move from New
Brunswick. However, the policy required medical information from a
physician, and his application again was denied.
Over the course of the next several
months, the employee appealed the denial of benefits. However,
despite being granted extensions and being warned by his employer
of the consequences for non-compliance, his failure to comply
continued. The employer provided the employee with one last chance
to submit the required medical information. The employer made it
clear that if he failed to provide the medical information or
return to work, he would be held to have voluntarily resigned. The
employee failed to comply and the employer took the position that
he had resigned.
The case was heard on a summary
judgment motion. The Court found that the employee had abandoned
his employment. The employee had failed to return to work for a
period of over eight months despite repeated warnings from his
employer and requests for medical documentation as required under
the policy. The Court also took into account the
employee's voluntary and undisclosed relocation to Mississauga,
as indicating an intention to abandon his employment in New
The Court noted that employees who
suffer from medical issues are not immune to being found to have
abandoned employment. The employee provided no evidence that his
medical condition precluded him from complying with the
requirements under the policy. He received multiple opportunities
to provide medical documentation as well as multiple warnings of
the consequences of a failure to comply.
Interestingly, the court found that
the employer did not have an independent duty to accommodate the
employee over and above the terms of the insurance policy. However,
this finding needs to be taken in context. The issue in dispute was
whether the employee had abandoned his employment. The employee
withdrew his claim for damages under the Human Rights Code
prior to the hearing. Employers that offer disability benefits
through a third party insurance provider still have a duty to
accommodate to the point of undue hardship, and cannot rely solely
on the findings of the insurance company.
Disability management can be a
minefield for employers. The fact that the employer in this case
provided the employee with multiple warnings and opportunities to
comply with the requests for medical information was key to its
success. Employers will sometimes be required to tolerate extended
periods of employee absence. However, employers are entitled to
reasonable medical information to substantiate an absence. As this
case shows, repeated failure to comply on the part of the employee
can result in a finding of abandonment.
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