Canada: Accommodation Is A Two-Way Process

Last Updated: August 8 2019
Article by Jennifer Costin

The case of Joseph v. Tecumseh Community Development Corporation (2019 HRTO 635) is a good reminder that the process of accommodating human rights in the workplace is a cooperative one, requiring effort and information by both parties.

In this case, Ms. Joseph forwarded a human rights complaint against her former employer, the Tecumseh Community Development Corporation ("TCDC"), alleging that it, amongst other things, failed to accommodate her medical disability when it terminated her employment. Ms. Joseph had been absent from work from June 18, 2016 through to her termination on September 2, 2016. She requested a variety of leaves to excuse these absences, including family care leave and a personal medical leave, but TCDC requested further information from her in order to grant such leaves, including medical documentation from her physician and details related to the leaves, such as the anticipated length. Ms. Joseph promised on a number of occasions that medical documentation would be forthcoming, but ultimately she only produced it in the human rights complaint process.

TCDC provided Ms. Joseph with a request to submit details and medical documentation on August 11, 2016, advising her that if it was not produced or if she did not report to work, her employment position would be deemed abandoned by her on August 19, 2016. While Ms. Joseph continued to communicate and assert her need for a leave with TCDC and state that she was "NOT abandoning" her position, she did not produce the required information and documentation. A few days later, Ms. Joseph asserted an unspecified Employment Standards Act, 2001 breach by the TCDC and again reassured TCDC that a medical letter would be provided "immediately". TCDC provided more time to Ms. Joseph, writing to her again on August 24, 2016, reminding her that "you have been absent from work without authorized leave despite repeated requests for medical documentation. The only medical note that you have provided for your leave is a note from a walk-in clinic for the period of June 13, 2016 to June 17, 2016."

On August 25, 2016, Ms. Joseph provided a letter from her son's psychiatrist noting his severe illness and her need to support him and a request that she be allowed time off work to deal with this. TCDC wrote a final request to Ms. Joseph noting (quite rightly in my view) that an, "employee cannot simply state that she is sick, refuse to report for work for an extended period of time and refuse to provide any medical documentation to her immediate supervisor". However, TCDC did provide Ms. Joseph with a final opportunity to provide it with the reason, length and type of leave requested, and if she was asking for a personal sick leave, it required her to provide medical documentation related to her illness. She was given two business days to respond, which Ms. Joseph failed to adhere to. TCDC accordingly terminated her employment for cause on September 2, 2016.

The Tribunal summarized the procedural component of an employer's obligation in the accommodation process, which requires an individualized investigation of accommodation measures and an assessment of the employee's needs. The Tribunal noted that the information Ms. Joseph provided to TCDC did require them to inquire further about her need for accommodation, but that it satisfied this duty by making such inquiries with her. It was Ms. Joseph that refused or was unwilling to provide sufficient and timely information to TCDC and therefore the Tribunal concluded that she failed in demonstrating that her absence was a necessary accommodation because of her health. As a result, the Human Rights Tribunal found that TCDC terminated Ms. Joseph due to her failure to provide the requested information and documentation, not because of a failure to accommodate her disability related needs.

This decision provides some guidance for employers who are struggling with how to handle employees who communicate a medical need to be off work, fail to report to work, and despite repeated requests, fail to submit medical documentation to support the leave. An employer needs to be mindful of the circumstances the employee may be faced with in dealing with their medical challenges, but at the same time, hold the employee to their responsibility to cooperate in the accommodation process. Every case is different, but in this case, the leave lasted just over 2 months and there were at least three requests for more information and documentation, before the employer terminated the employee and ultimately avoided human rights liability.

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.

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