Ryan Haffner
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Good morning, everyone. We will give a couple of minutes to just clear the lobby and get everyone up to join us today.
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OK. I think we've had a chance to clear most of the people in the lobby. We will add in invite invitees as needed. So, thank you very much for joining us today. I'm excited to present to you on Medical Leaves Made Simple. My name is Ryan Haffner, I'm the Vice President of Operations, and I'll return to health team at Cowan Benefits Limited. Excited to be joined today by Seann McAleese, who is a partner at Davies Ward Phillips & Vineberg LLP. Seann specializes in employment
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and labour law in both the private and public sector, has been a great partner with Cowan as well, recently having presented at our THINK Conference. And he's joining us today to present on recent changes in labour law legislation with a focus on long-term medical leaves and what it means for you as an HR representative, professional, your organization and your employees. So, with that, I welcome Seann.
Seann McAleese
2:14
Thanks, Ryan and good after. Sorry. Good morning. It's still morning everybody. Pleasure to be with you even albeit virtually as the as the title slide implies, we're gonna hope to make medical leaves made simple. But I must confess as I go through it, I'll probably make it somewhat more complicated than you were hoping. But you know, the good news is you've got folks at Cowan who can have quite experienced and managing these processes as I go through and see the processes is quite critical.
2:42
So what I'm going to cover today is the legal framework around accommodation and absence management
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and then I'm gonna address how so the most effective ways in which to manage these absences. And then of course, ending off with any good lawyer would do is to scare you a bit about the risks if the if the process isn't deployed properly, aside from just simply, you know, meaning the apps is extended or the individual comments, your rights code claim or other issues. And we'll sort of deal with that towards the towards the end. Is there? It is an area that's fraught with difficulty, unfortunately, because you're dealing with
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employee health and to some extent employee privacy issues. So, first on the legal framework,
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as everybody knows, the foundational statute for this issue is the Human Rights Code. And everybody has the right to freedom of discrimination in respect to their disability or being harassed or treated unfairly as a result of their disability. And obviously that can extend to absence and accommodation management. So that's the foundational piece to start us off. And I just thought there's a lot of
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people don't go back and look at it. And it's quite interesting. The human Rights Code actually contains a fairly exhaustive definition of what amounts to a disability. Obviously, the ones we're all familiar with terms of physical disability or disfigurement or bodily injury. And but you'll see there's quite a bit of specificity around including diabetes mellitus. It also even goes down to speech impediment reliance on an animal, a service animal itself constitutes a disability. And that's something to
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the sort of bear in mind. The other broad category obviously is any sort of, and increasingly in you, you probably vouch for this on your end. It seems to me it is more of a mental impairment, mental addiction, mental health issues which are creating a lot of absenteeism and or difficulties around the accommodation process. And, and we've certainly seen a lot of employees post pandemic attempting to leverage the disability as a, as an accommodation claim and to
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insist on working from home, whereas other employees have obviously returned to the office, if not entirely at least partially. So, it's an important area to deal with
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learning disabilities, mental disorder, as I mentioned. And then just the other, sometimes we also lose the track of this. My apologies back. The disability under the human Rights Code also includes somebody who's obtained benefits to the WSIB. They've established a claim and so that is entitled to,
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you know, there's certainly there titled to deal with that as a, as a disability under the Human Rights Code as well as on the WSIB.
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Under the WSIB, there is also the legal framework that we need to consider, which is if it is an injury that's related or arises from the workplace. There are certain statutory requirements over and above the Human Rights Code or the Employment Standards Act. And that's the duty to cooperate, which applies to the employee and the duty to reemploy, which obviously applies to the employer. And in in the sense they're agents in terms of who assists the employer with those with those issues. Another
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legal framework to be aware of is to the extent that you or somebody assisting you, if you know, if you have a particular statute that might apply. So, for municipal HR folks who might deal with, for example, accommodation of police officers, there's specific rules and requirements that are also layered into the Community Safety and Policing Act, which recently I was saying, it says 2019, it only came into force last April but essentially governs the employment relationship with respect to police officers and civilians.
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And so that's certainly something that you know, would need to consult if you're dealing with a particular subset of employees.
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The Employment Standards Act, which again, you're all familiar with sets of, I sort of say various and sundry leaves. It's quite incredible how long the, the list of leaves has become under the, under the statute. The ones of immediate interest obviously are the recently the, you know, the three days of unpaid job protected sick leave and the restriction on employers effective October 28th, 2024, which prohibits the employer, obviously the agent administering absenteeism for them from requesting a doctor's note.
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But it's important to note that there's, with respect to all the other leaves, including sick leave, there still is the ability to request evidence that's reasonable in the circumstances. It just can't be obviously with respect to sick leave because of the ban or the prohibition, it can't be a medical note. But to give you an example, I mean, we've had cases in which we've uncovered sick leave abuse or fraud by asking. They say, well, I'm taking one of my three days out of the USA, and we've asked for, for example, this was an individual who had left the country, and they claimed that they were too sick to return
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and they provided a, a basic doctor's note or sorry, in prior case they did. In this most recent one, they didn't have to provide a note, but they did anyway. They just voluntarily did it. But the employer couldn't rely on that. So, what we asked for instead was we want to demonstrate whether or not you actually had intended to come home at the time you did. And they requested the tickets to show the flight, to show the dates that they left, the dates they returned. And when they requested that, it turned out that the individual had never actually booked to return home.
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the date they said they were and had in fact extended out three days, which is ultimately what they request, and they employment Standards Act. So, we're able to rely on that evidence to say that it wasn't a proper leave. But you can't get into challenging the medical basis for the for the illness for the three days. But bear in mind once that the three-day Employment Standards Act leave. Is covered and done which you would apply to the first 3 days in the year, then any subsequent time off because usually employers have weekly indemnity or other.
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sick leave programs. You can certainly request doctors’ notes for those absences once you get past the three-day threshold under the Employment Standards Act.
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The other leaves which I just leave here, I'm gonna go through them. But as I said, I was going to give them all individual bullet points. But as you'll see that have about 14 slides to set up the various leaves. But they all are subject to the same rules. And some of them may involve obviously mental health issues. For example, somebody may take a critical illness leave or a crime related child disappearance lead because they're quite understandably stressed out and they might have medical for that. But again, that's a different issue than the three days of unpaid
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big time. So just and the evidence reasonable in the circumstances continues to apply. So, you could certainly when you're managing that form of absence, even though it's a statutorily protected leave, there are certain requirements that could still be satisfied.
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Now with that foundation in place and to deal with how the absences are managed. Obviously by human resources or by the OR by a medical department within the employer. And then oftentimes by a third party such as calendar or other consultants. And which we increasingly see now in part because of the privacy concerns that employees express. But also, frankly, oftentimes human resources doesn't want to deal with or have knowledge of, you know, medical issues that might be affecting.
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employees and there's concerns about confidentiality in the workplace. So, it is something that you know, it's certainly, and obviously the expertise is, is a definite reason because oftentimes human resources or others aren't necessarily the task or sorry trained in how to manage absenteeism, specifically when it comes to these types of issues.
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So in the initial starting point for any absence or, and I'm including accommodation because as you probably experience, many times somebody will request will say, I'm, I'm it will start off as a leave of absence. And then they resist the push to get them back to work by claiming they need some form of accommodation, whether it's continued work from home or some sort of a hybrid arrangement. Or they may be sort of like, you know, lack of a better term job shopping and trying to use their underlying disability.
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in a way to have their job tailored differently or even potentially to acquire a different position in the organization. So, all of that, all of these involve managing employee medical, whether it's an absence or an accommodation. So, first thing first, whether whoever's doing it, the employer is absolutely entitled to request medical documentation subject only to the employment restriction, Employment Standards Act restriction I noted a moment ago. And if any of you are dealing with
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collective agreements, sometimes they'll be limitations. It's fairly common to see restrictions on management's ability to request medical until there's five days or it might be in circumstances where the employee has suspicious absences. You know, the Monday, Friday person or the person who always seems to be sick after their vacation ends and it gets extended by a few days. The generally there's exceptions to request medical or other information around that. The other important thing to note, and I see
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it's a lot my in my dealings with, with human resources, which is who I obviously typically deal with, you know, you'll often get a terse doctor's note that says solid, saw this patient, they're totally disabled for the next 60 days. That's all it says. And you're not required to accept that. As you know, if it's just for a few days, you're past the ESA. Maybe that's good enough. Maybe you don't bother. Context is important. Maybe the employee is not a highflyer on absenteeism. So, you can
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exercise discretion and not require further better medical if it's appropriate. But if it's an extended period of time or they're seeking significant accommodations at the workplace or to continue working from home, you can absolutely push back on a brief doctor's note like that and demand further and better information in terms of their restrictions and limitations and, and other elements that will go through in a moment.
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And the other thing to bear in mind is that it's proportionate, right? So, the longer the absence goes on or the longer they've telegraphed their absence to be like, you know, I'm going to be out for 90 days or 60 days. You're entitled to more detailed information, and your base is to insist on that is much stronger. Same thing with if they're asking for an accommodation that might present health and safety risks to other employees in the workplace. That's something in which you can absolutely the employer or through its agent
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and demand further and better, better information. Because a common example is gonna go back to my job shop comment, I suppose is that some people, you know, they might have a legitimate injury that no longer doing 1520% of their job, which required heavy lifting or operating certain equipment or dangerous equipment. And there are accommodated for a brief time not having to do that. But and that's OK. But when this becomes extended or potentially permanent, it effectively means that other employees
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have to rotate through the harder work more often because the other individuals being accommodated. And in those cases, again, you can insist on far better information and may potentially deny the, the accommodation request as a result of the fact that it's poses a risk to the, to other employees who are going to be doing the, the heavier lifting.
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And you know, in terms of the, you know what, what do you do if you get that cryptic or, or useless medical note? As I said, you, you know, you have the employer ask For more information. It might be in the form of a letter that you asked the employee to take to their physician. I generally would recommend against liaising directly with the physician unless you're doing it through a third-party expert service such as Cowan or those folks. But generally, would strongly recommend against
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HR or somebody in the environment, in the employment environment doing that themselves just for medical privacy and other and other reasons and expertise. So, so if you do as the employer ask direct asked information, then you address it to the employee to tell them to take it to the physician and you ask them for details around what are your restrictions, what your limitations? What's the prognosis for recovery? What are they compliant with their treatment program? Are they always, what's the prognosis for this injury or this absence
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you were to cease? Those were all things in which you could ask. The other way to go about it is again, and this gets more into a long-term accommodation or a long-term absence which doesn't seem to be resolving. Then you might ask for a functional abilities’ evaluation, or you might even go as far as to have an independent medical examination. For example, if it's a complex psychiatric condition, but the employee is simply providing a note from their family physician that says the employees stressed out and experiencing psychiatric.
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So it's or upset and you know that that's it. Then again, they're not they're not an expert in psychiatry and you can demand either information from an appropriate healthcare practitioner that the employees see or absent that if it's just a walk-in clinic GP arrangement, then that might be something. Again, if it's a longer-term accommodation or there's no end insight that you might want to go to FAE or IME in order to get more probative, more valuable medical information in which to make
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employment related decisions.
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Sorry, I wanted to go back to the slide. The other, I mean, obviously it's always case by case. And I sort of, I mentioned previously on the other slide, you know, if it's an individual who isn't normally a highflyer on absenteeism, you may not require the same follow up. Or if it's obvious that they broke their leg, you don't need to send them to a physician to get to say that they're restricted from standing for certain time periods. You know, there might be obvious ways in which you don't need to deal with it. But conversely, if you're dealing with somebody who is a Monday, Friday
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absence, they're always extending their vacation or they actually
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sorry,
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or if they
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had a recent performance review, or in some cases, you know, they heard that their termination might be pending, or they caught word of a of a, a significant downsizing of the employer. All of those things, while not medical, are obviously relevant to consider from the adjudicator or case manager or employer perspective when assessing why is this person suddenly off on a cryptic note for 90 days when they had no other issues, especially if that 90 ends up becoming 180 and so on. So, in those situations, it's important to understand whether or not any of those other contextual
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items are present because it will affect management of the claim.
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It'll be critically important that the employer or the adjudicator, if you employ somebody or the, or the, the case manager, that they, that both the employer and the, if it's a third party have appropriate policies and procedures in place and protocols around when to request information, when to request further embedded better information, when to request independent medical or a functional abilities evaluation. Those things are critically important to. It doesn't have to be entirely
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descriptive, but there should be some general guidance around when these additional thresholds are met for requiring further information.
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A It helps obviously, to administer the claim
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or manage the absence, but also avoids discrimination claims because people will often say, well, you're targeting me, you're only managing me. This other employee was absent the other day and there was no require of the other week and there was no follow up. That might be because the other employee wasn't problematic employee, or it was a short term or there could be a variety of reasons. But if we don't have these criteria spelled out in a policy, in a protocol, then it does leave U.S. Open to these types of allegations. And the problem is, under the Human Rights Code,
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I didn't reproduce that section, but there's essentially a section that if an employee alleges that we've treated them in a certain way as a result of their disability, and they established that at least it's possible that that's the case, then the legislation effectively requires that the employer disprove that right. So, they don't have to, you know, the tribunal could infer from how they were treated that in fact it was due to disability, and they were treated differently. And if we can point to why this individual
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with different compared to the others and that we have a prescriptive, not overly, but at least some of the steps to follow and we can show that we made decisions on reasonable basis, then that provides us the ability to defend the human rights claim if that happens. And increasingly we see them against employers on these issues as well as whoever's doing the case management, they'll often lump both parties and whether it's SDG Ltd or simple absence management. So that's why it's good for everybody to be on the same page and have fairly sophisticated.
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The policies you also, as a matter of first instance, you want to determine whether or not there's any connection to the workplace, both because there may be exclusions under insurance policies around whether or not they're eligible for STD or eventually at Lt. because obviously if it's connected to the workplace, there may be exclusions. And if you work for an employer
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who is subject to the WSIB, then they're almost always our exceptions in the insurance policy. So, if there is a workplace component to it, then you need to make sure that that's understood and or challenged at the appropriate time because that will affect what path the claim goes down as well as whether or not the WSIB protocols and obligations and reinstatement obligations will apply or not. So, it's certainly important from that managing the proper path. The other reason, of course, is if the allegation is that
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that's due to being harassed by my manager, it's often due to performance management issues. But sometimes we call harassment. We can, you know, that needs to be investigated and ideally disproven that no, we were simply managing your employment. We weren't. This is harassment. You're getting additional scrutiny not because of the disability or not because of any other improper factor. It's because you're a problem employee or you've demonstrated these issues. And so, we need to be able to understand if there's any workplace Nexus for those two
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reason. So that be important.
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I noted sort of refer to this a little bit at the outset. I'm sure you probably all feel the same. Increasingly the lot of time is spent on absence management and accommodation is based on mental health issues and addiction. And those are difficult issues to handle. There's like the human rights tribunal will say the employee or sorry the employer or its absence or its claims management folks can't be blind to that, can't be willfully blind. So, if there are all kinds of
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tell tale signs the employee was suffering from that kind of a condition or concern and we end up terminating their employment, for example, and they'll often say, well, this it was due to my mental health, or it was due to an addiction issue. And the employer or the case management folks that why didn't they didn't tell us that at writing or didn't formally disclose that. But if the evidence, if there's other evidence that the employer or the case manager, especially the management
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would know that, yeah, there's probably an issue. This person is suddenly missing a lot of work or is suddenly more agitated at work and there's some different changes or just obviously clearly impaired in the workplace, for example, you know, then we can't say we didn't know. It'll be, it'll be difficult for us to defend on whatever that might be. So, it can be helpful for employers to provide even just a base level awareness to, to management about these types of issues, what to look for, what to, how to notify HR confidentially.
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Because you also don't want to create a situation where you've got managers as Inspector Clouseau running around assessing employees to see if their eyes are bloodshot every morning. These there has to be a balance, right? And that's why they should only be disclosing that information to, to human resources who that can deal with it appropriately.
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The next point is to ensure that you're treating the absence management process or accommodation process. And sometimes it's a mix of both, right. As you're gradually getting the person to return to their regular duties that it's not fixed in stone that we can't say like this is the 90-day window. Here's what's going to happen at the end of that. We expect you to be fully, fully reporting to work performing all essential duties. We might have to back up a bit if there's a setback and it's legitimate. Conversely,
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things might improve, and you can accelerate the timetable on the accommodation plan or the return-to-work plan. But it's important that to have that plan and to have it evolve just to some extent. And be wary that it might because ultimately there's really 2 outlets here. We're either managing the absence to get early and safe return to work or the accommodation or we're managing it to the point of termination of employment. And obviously if it's a disability related absence, we can't terminate
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without cause or terminate for cause obviously. But you there may be the ability to terminate for frustration. And that's recognized by our human rights adjudicators as well as under the Employment Standards Act itself, which contemplates that employees may be terminated where their extensive absenteeism or the inability to accommodate their needs to the point of undue hardship results in an inability to continue the employment relationship. And the entitlements in that case
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are limited to the Employment standards termination pay and severance pay. It's generally a complete defence to any claim by the employee that they're entitled to reasonable notice damages, that common law, because the whole idea is that if you're frustrated from employment, you're disabled, then there is no mitigation. And that's what the reasonable notice damages are for, to help you find your next job. And that's not going to apply now. It's much easier if you get to a termination for frustration circumstance where the individual is on long term disability
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and if they especially if the individual goes from being disabled from their own occupation at the usually the two earmarks, some plans are one year, but usually two years or if it goes once it gets to the disabled from any occupation. When that happens and the carrier or judicator has made that determination, it's generally fairly safe to terminate for frustration at that point because there is no prognosis for a return and the individual is has been found to be totally disabled
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from employment. So again, all this work that goes into managing the absence is what that informs the employer's ability to terminate for frustration down the road or successfully get the employee back into the workplace.
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In terms of what the employer of managing the process would be entitled to,
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you're entitled to the nature of the illness. Obviously, we all know not a, not a, not a diagnosis, your title to know what's the expected date of return and have that updated periodically. If it's uncertain or or quite far out, you're absolutely entitled to it. Details on their restrictions and limitations. And the other important thing. And This is why, again, it can be helpful to have a third-party expert do this because, you know, HR and others may not have the expertise, but oftentimes you push back and say, oh, thanks for that note.
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Can't tell obviously based on the note, but were you a seen by the physician in person? Were you assessed by the physician in person? What examination or testing did they perform? You're, you're entitled to ask those questions. Obviously, the responses back will have more meaning to a medical professional or to a claims management office management professionals that would perhaps you or I, but it's but you're absolutely until last those questions. And I find it often makes physicians bit nervous. They're a little more weary
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of making bold statements around what the employees’ capacity is. Because ultimately, I would tell my experience and again, I only deal with the worst of the worst when it comes to legal issues. But oftentimes it's all self reporting. Sometimes it's just over the phone or in that case where they just emailed the physicians and I'm not feeling well, I feel disabled, and they wrote them off for 30 days. So absolutely entitled to push back on that sort of stuff.
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You're entitled to a prognosis, obviously prognosis in terms of if it's absenteeism, when are you going to be back to work and, and updates on that. Or if it's prognosis around restrictions and limitations you're able to, you know, accommodate when are they going to get back to full capacity? When are they going to get back to being able to perform their essential duties as required under the human rights code. So, you're absolutely title of that and updates on that. And the more that the prognosis becomes uncertain or the more the physician’s initial
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prognosis was uncertain, it's actually good evidence if we ever get to the termination for frustration argument because we're able to say we keep getting 90-day process, 60-day prognosis for recovery from the physician and they're never right. We've got ten of these now and we're you know, we're two years out or a year out. And at that point, you know, the fact that they can't accurately provide a prognosis is very good evidence that there is no prognosis reasonably proximate for them to return to work or to return to regular duties.
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So it's important to follow up with that.
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You're also entitled in some circumstances to confirmation of a compliance with the treatment plan so that they have a duty to do certain things, whether it's physical exercise, whether it's taking certain medications. You're not entitled to know what those medications are obviously, but you're entitled to know are they from the physician? Are they complying with the treatment plan as prescribed? Because if they're not that's a failure on the employees’ duty to participate actively in the accommodation process or the return-to-work process. So certainly, something worthy of following up on. And then
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finally, as referred to in the prior slide, you've certainly able to provide for a specialist opinion if it's like I said, if it's something that's clearly above and beyond what a GP can assess in their office. And it may be more physical assessment, could be a physical demands analysis, any number of things. I'm not suggesting it always has to be obviously only in a psychiatric issue but consider whether you push back in some instances for a specialist opinion.
Ryan Haffner
29:43
Seann, can I just interrupt because there's been a few kinds of questions around this. So, I thought it'd be just good chance to surpass this. So, lots of questions. Thank you, guys, for keeping to do that. I'm keeping a list of ones that we're not immediately responding to. One of the questions from a, I guess an employee participation perspective, it's been a few questions around what if the employee doesn't kind of want to participate or provide the reasonable level of evidence that an employee is employers allowed to obtain. What are often the next steps
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from a from an employer's perspective that they could take?
Seann McAleese
30:17
Yeah, so yeah, great question. If they're not at at it happens frequently, unfortunately, employees resist providing further and better medical. Sometimes they just turtle and don't even respond to requests. But at some point, you'll have to sort of and again, it's important that you know if you're bad nausea probably on this point, but the document this and it's to say like we need this information on or before ex date so that we can make decisions about your whether your absence is valid, whether your request for accommodation is valid. And so, you just say that or, or maybe
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think it's a more neutral term, the 1st letter, not that it's valid, but how best we can accommodate your absence or accommodate. And you know, and then if that date comes and goes, then the next one is, is a bit firmer. And simply, you know, we require this information, whatever it is you ask for to be provided by you or your physician or whatever the case may be honored before ex date failing, which will make a decision about accommodation, or the validity of your absence based on the information we have currently. And that usually means it's not approved.
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That usually means that there's no basis for the accommodation or insufficient request. And so usually when you put that second deadline to them and they appreciate that it's gonna have consequences for not complying, you'll usually get something. If you get nothing after that, then the final or should say final, the next step employers will either say you're teetering on abandonment, right, because you have a duty to cooperate and reciprocally you've failed and you're actually case law which have upheld terminations for failures for the employee to participate in the accommodation
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process. So, you do have, you do have outlets. Some employers won't terminate. They'll simply say you're on an unpaid discretionary leave until further notice and that you might see what that does and then follow up again. And that start back with the if you don't provide the information requested, your employment may be terminated. You certainly won't be entitled to the STD or Ltd or whatever weekly indemnity benefits might be available. So, they're certainly leverage that are available to the employer to press for
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for cooperation with the employee. And you're entitled to do that. Obviously, it'll just, if it's with an employee that you've been around the horn on many times that you could probably be more aggressive sooner
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and preferred the fact that we've experienced difficulties with you in the past and complying with substantiation requirements. If it's somebody that is First off, the first time you're seeing them, you know, you might want to tread a little more gently. And the reality is some employees think that, and I see the sometimes like, you know, how to tell, ask me anything or they'll say you're not entitled. You're not tell little my prognosis or my restrictions and limitations. That's for my physician only. They'll tell you when I'm ready to return to work or they'll tell you what accommodation I'm entitled to. And that's just legally incorrect.
33:00
You, you know, the employer is entitled to relevant medical information or other information to determine whether or not the absence is valid or to determine whether or not the accommodation request is appropriate and should be given further consideration. So, you know, don't be afraid to push back and educate. And even some physicians you'll get pushback from, from physicians sometimes. And I've said ghostwritten lawyer, ghost written letters for clients in which we remind the physician of their duty and their information bulletin
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from the College of Physicians and Surgeons Ontario, which talks about the obligation on the family physician to facilitate an early and safe return to work. Their job isn't to just write these doctor summer off notes. So don't hesitate to dry in their or their requirement to cooperate as well.
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But I can tell you it just as a quick aside, it's ironic and somewhat amusing. I've dealt with doctors as employers and to see how frustrated they get when their employee that works at the clinic or whatever it is, gets some other doctor saying they're not able to work or they're feeling harassed or, and they're so outraged that there's no detail and where's the particulars? I want to diagnosis. I can reassess it. And so, it's just kind of interesting. It's all about, it's all about perspective, whether they're the employees
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position or they're the employer of the, of the employee.
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Hopefully that helped address. And then again, this is part and parcel of what we need to remind employees about. And that is if they're to maintain the absence or to, you know, if it's like I said, a lot of this is evolving at all. I don't want to go back. I have a mental health issue or stress or agoraphobia or whatever it might be. I can't come to the office and they're asserting disability or some other human rights ground. They're the ones that have to make the request. They have to substantiate the basis for the request and explain that to the extent that the employer or the claims
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or management absence management people can understand it. And then they need to absolutely provide suitable documentation in order to ground the request for the continued absence or or for the accommodation. It's a legal requirement on all employees and it's well recognized in the case law. So, we can certainly push back.
35:19
As noted, they have A, the reciprocal duty to facilitate the, the whole process. It's not a one way, what can the employer do? For me? It is, it is a mutual obligation that's shared. And if there's a union in your workplace, they should also be involved in the process to some extent because A, they're the exclusive bargaining agent. So technically they have a role in dealing with employees, but B, which sells more important, you don't want them to be able to lie in the weeds or on the sidelines. And then when the accommodation process blows up and they grieve
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and they've had no involvement, then you know, they can be quite difficult to deal with. Whereas if you've involved them at the front end and they see that the employees is the obstacle, the employees not assisting facilities, sometimes that may avoid agreements. Sometimes they lean on their own union member. Other times that they do file agreements. It's great to call evidence at arbitration or at the human rights tribunal that they were in the room with us. They saw they saw the same failure to provide information that failure to cooperate. So, we're, you know, because sometimes the unions are worried about their duty of Fair
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representation and may not get too aggressive with the employee, but it's still helpful to to include them at the outset and as the process goes through. Sorry. And I also wanted to deal with.
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That is really critical to note
36:37
because I said it's not what can the employer do for me. The employer's legal obligation is to provide reasonable accommodation to the point of undue hardship. They're not doesn't mean you have to give what the employee asked for or what they prefer or what the person would love to do. As I said, we often see a lot of accommodation requests where it's like take out the 20% of the hard labour that's associated with this job, and I just want to do the 80% even though it's an essential duty. The other, the other elements and you know, a, you could push back based on substantiation,
37:08
the impact on other employees that they have to rotate more frequently through the harder aspects of the job. And that may amount to undue hardship if it's a health and safety risk with to other employees. And you may say, we're not challenging whether or not that's true. We're just saying we can't accommodate it. And then what happens? I'm sure you've all experienced this. Sometimes you get evolving restrictions. So, it's either I'm suddenly getting better now because they see that the gigs up and the employers through the walls are closing and they might actually take
37:39
action and respect to their employment based on the weak medical or the weak restrictions. Or other times I see it
37:46
where they involve the other way, where it just gets increasingly, they just don't want to come back. They get to the point where they're basically all they can do is float in the air. They have no ability to walk, sit, stand. I mean, I've seen some pretty crazy material, frankly. And if they do that, you might want to, as the employer, accept that, not challenge it and say, OK, well, the employer relationships frustrated. We have no, your condition has become progressively worse and your restrictions progressively worse and we can't accommodate you. So, you know, again, it's a bit of a,
38:16
and that's where the case management, absent management people can assist because they're sort of attuned to those issues and strategizing around it. Because again, the whole point of all of this is either to get the person out the door, that's cynical lawyer or get the person back in the office door and working productively. But also, you need to be aware of these pitfalls on the on the way through.
38:39
Now in terms of the pitfalls and understanding the risk will cover those fairly briefly. But this one's important only because it's a, it's a human rights tribunal case. The TP in Ontario Correctional Services and there and there aren't a lot of these, but you know, it does happen from time to time. They have awarded damages in this case $27,000 in damages for injury to dignity as a result of aggressive disability management. So, in that case they found that the, I think it was the employer. In that case it wasn't a third party.
39:11
That's probably part of the problem. They were being extremely aggressive with the individual, very, very tight timelines in terms of giving further better medical information to substantiate the absence. They were then threatening to cut off benefits. And you know, some demeaning remarks. I think we're even got produced in emails. And that's the thing to think about too, right? As HR professionals and others, try to avoid any editorial in your emails or Slack or whatever communication systems you might
39:42
use because all of that stuff's ultimately producible in the event that there is litigation arising out of these issues. And it can be pretty damning. And I've seen cases where it's come up and HR are usually more, so a manager says, yeah, we gotta, cut bait on this person. Even like one case was during the probationary period and which they could have just HR could have just managed said not suitable for the role. We wish you all the best. But instead, this person emailed all these reasons based on medical.
40:12
Concerns the employee had as to why he didn't want to continue working with the individual and didn't want to be bothered accommodating periodic absences and that sort of stuff getting produced and receding has a significant negative impact on the on the tribunal or the court or the arbitrator if it's unionized and their view of the case and their view of the employer and how they managed the absence, you're, you know, you're absolutely going to want to steer clear of that sort of overly aggressive. And again, that's why it's useful to put this in writing,
40:42
do it through e-mail because what whatever said on a phone call, unless it's been recorded is, you know, it's debatable in terms of wasn't aggressive tone or was it just a forceful tone. Whereas, you know, putting it in writing and using neutral language provides for a better, cleaner record in the event that we've got to defend any of these human rights, disability or discrimination cases.
41:06
Just so you know, it's not all bad for employers. There is this Court of Appeal case involving the Ottawa Catholic School Board. And they actually, in that case, the Human Rights Tribunal at first instance had found that the employer was indeed justified in requesting an independent medical exam as part of his duty to accommodate. Because there are many, many uncertainties around the underlying medical, including whether or not the person providing the GP providing the opinion was even capable, let alone engaging in the type of examination.
41:37
I referred to earlier is important. And which was a surprise because the tribunal typically has not a terribly employer friendly body. But in that case, it found that was reasonable and this was judicially reviewed and then ultimately up to the Court of Appeal of Ontario and they agreed that that was reasonable. I mean, there are circumstances in which we can demand that the employees submit to an independent medical. Now, of course you can't, you know, chain them to an examination table and require it. But if they refuse to cooperate
42:08
and they're either, well, initially they would be on an unpaid leave of absence. And if that persists, at some point the employer might say, if you're not gonna do this, we're not accommodating you or retreating the absence as being unsubstantiated then and then leading towards termination for cause in that type of situation because they've not cooperated with the process
42:32
under the WSIB. And I just, I won't belabor this point. I just leave it on there. Again, for those of you that are subject to the environment, there are, you know, it has a fairly detailed early and safe return to work process under the legislation, but also just in terms of your own expertise in dealing with these. And if the employee and I've been involved in the cases where the employee does not cooperate or they're slow to cooperate and the WSIB will suspend loss of earning benefits
42:59
or discount loss of earnings benefits
43:03
often to try to get the employee to comply. So, there's certainly no problem with the employer doing the same, whether it's WSP or not. But the employer, if they're not properly participating in the process, as I said, it's reciprocal, then there can be significant penalties under the WIB in terms of not facilitating an early and safe return to work. You will always be notified in advance by the WWE if they're doing that typically verbally, but certainly in writing. And if you get into that
43:34
sort of situation, then you probably would absolutely want to retain either legal or management third party attendance or combination management services because the penalties and the consequences can be quite serious for employers. So just that important additional layer to notes of the event that it's the absence or the accommodation request stems from a workplace injury.
43:59
Now there are limits and it's important to bear this in mind when you're going through this process. There is no obligation at law under the Human Rights Code or law of the courts, the tribunal to remove essential duties. So, or to basically make the job useless or to provide or make a job for somebody. At the end of the day, the primary process focuses on getting the employee to return to their preinjury job, whether it's WSIB
44:29
or whether it's simply off duty injury or illness. And that's the that's the focus. Can we get this person back to work performing their essential duties? We don't have to bring them back and delete all the essential duties. That's not required. And you don't need to RIP apart the job in order to find something that that the employee could do with some value. They need to be able to do the majority of the job. Maybe it's 80%, maybe it's 75, maybe it's 90. It'll depend on what the nature of the duties are. But it's not like
44:59
if it's less than half, then you should be pushing back quite hard. The second step of the analysis is you would, in certain circumstances, especially where it becomes a permanent issue, you might have to consider to the point of undue hardship, whether bundling some duties together makes for an economically viable job that the person could do. Or in some cases to in a unionized environment. There's been cases in which they bumped out of sort of bypass interiority on a job promotion or a job
45:30
assignment, very rarely actually physically bumping another employee out of a job. It would not entail bumping an employee to the street so that the disabled person could, could retain employment. But in between on that continuum, there are things that you know, you'd have to consider depending on the nature of the of the illness and the and the injury.
45:51
The other port pointed out is especially if it becomes a permanent accommodation, if they're being accommodated in a lesser role with or without accommodation, if, you know, they could do that job but not need accommodation or they could do it with a bit and that's where they want to go. And we're OK with that. As the employer, you don't continue paying them at the higher rate that they might have been given receiving under the other position they had. They're only entitled to be paid in accordance with what the rate of the job is. There's no sort of super priority
46:22
describe to their wage rate because they're being accommodated. Now if it's for two weeks or four weeks, you know, maybe you don't reduce their wages over that short of a period. But absolutely if it becomes a permanent accommodation, give consideration, serious consideration to paying them only what the what the job rate is the applicable job rate. Because in fact it's a disincentive and demoralizing to other employees who are doing this very same job next to them and earning less pay. And there's nothing in our human rights,
46:52
well, that requires you to pay somebody more than what the job is worth because they have a disability. And the same thing is, you know, why sometimes when employees aren't extended absence, it's not discriminatory to suspend benefits coverage because benefits coverage is something that's being given in exchange for performing work. And there's significant case law on that as well. But again, you wouldn't do that until at least 90 days or more. Just you don't engage, you know, unnecessary litigation. But also, it's more defensible
47:23
longer it goes on.
47:27
And the this, I just include this one case law point because it is fundamental. It's a case that we all go back to from the Supreme Court of Canada in 2008. It's a Hydro Quebec case involving an employee with substantial absenteeism over the course of several years. And in that case, the union was essentially arguing that, you know, they do come to work sometimes. So, you know, you know, and how and how is it undue hardship for the company if they're not at work and they're not getting paid? You know, what's the problem
47:57
with that? So basically, just accommodate this crazy absenteeism that was 30 days plus each year. And this went all the way up to go to Canada. And they said, well, hold on. Like there's still, there's a fundamental employment relationship here that requires work in exchange for pay and dependability in order and trust and as the foundation for the employee relationship. And they said it was appropriate in that case to dismiss for frustration or innocent absenteeism. It's sometimes called where there is no foreseeable change and
48:28
as I said, that can be because the doctor said there's no foreseeable change and you have a note to that effect, then proceed with frustration-based termination. Or it could be that the that the doctor gets it wrong 12 times and you have no idea when this person's regular capacity or regular attendance will resume. Or it could be that the employee or sorry, the doctor keeps saying all the ready ready and it keeps changing. Then the corridor, the tribunal will look at the totality of the employee’s attendance record and they'll expressly conclude,
48:58
you know, you know, this history is good evidence of what the future is going to be like. If you've got multiple years of substantial absenteeism, then the court or tribunal will look at that and say, well, that's a good indicator of what the future holds, and the employer should not have to tolerate that indefinitely
49:17
as they indicated the prior attendance record. Or if you've accommodated the individual for quite some time and they're not getting better despite promises, you know, that's relevant to whether or not you look at an alternative accommodation or whether you look at termination for frustration. Same thing with the, you know, if there's no expectation of reasonable attendance or return to essential duties that might lead to frustration. You also need to ensure that the employee is given some sort of I say warning
49:46
verbally. Here you see counseling, you know, everybody gets nervous if you talk warning language in the attendance management context because it's not supposed to be disciplinary. It's non culpable
49:57
all the reasons they're out. It's not their fault. It's a condition or injury. But you still have to just advise them. There's nothing wrong with telling them that you've missed 22 days this year. Our average is 8. Or you know, hey, just reminding you over the past two years you've missed this many days. What can we do to help you improve your attendance?
50:19
And it invited discussion either with HR, with the third-party case management services. But you have to you can't just surprise them with a you're terminated for frustration. If you give them no forewarning, what often happens is they magically recover the day after you terminate them. And then when we're in litigation, right, the employer, plaintiffs’ lawyer will say, oh, look, they got this medical a couple months after they're terminated from their physician clearing them from all restrictions or all they needed was just magic intervention and now they're fine.
50:50
And if it's like if its probative legitimate information, then sometimes employers have difficulties with that because you didn't provide the employee with the notice that how serious it was getting and that their employment might end. So, it's important to do it for that reason as well. And then ultimately, as with everything else in employment law, the onus is on the employer to establish all of these things, right? That there's no prognosis that it's the patterns have been atrocious that they've been appropriately
51:21
consoled and cautioned and offered assistance and nothing seemed to work. Then you're pretty well situated to implement termination at that point.
51:30
I sort of referred to this the first point earlier, but this concept in human rights law, just a difference between participation and compensation. So as I said, you know, things that like, you know, accruing seniority, for example, that you know, that continues as part of you participating in the workplace, even though you're away, you're still accruing service and you already whether the collective agreement or for termination severance pay purposes on the Employment Standards Act, that's just that's life and that's what the courts have accepted. But as it relates to compensation
52:00
entitlements from the workplace, whether it's benefit coverage, salary, perquisites, whatever it might be, there's, you know, it's very strong foundation in our law that you're not entitled to free compensation. It is a relationship where you render service in exchange for compensation. And if the employee is not doing that, then the employer's obligation to provide compensation can terminate. So, you know, it's important to remember those, remember that. And it's also why I say to you, consider paying the person in accordance with the applicable
52:30
job if they're accommodated in a lesser role and it becomes important.
52:36
Safety, as I mentioned earlier, is, and that can be safety to other employees because of the rotational duties I mentioned. Or it could be if you're dealing with somebody in a, in a safety sense of environment who has,
52:49
you know, as a physical restriction that prevents them from doing certain things safely. For example, like a point of contact, pulling themselves up into a vehicle or a tow truck or sorry, a lift truck. You know, they, they can't just say it's OK, I'll waive that. Like even let me just do it with one arm and pull myself up or a stool or something. You don't, the employer doesn't have to allow and shouldn't allow the employee to accept risk. It's, there's no legal requirement to do that because the reality is if the person's interests themselves,
53:20
the employer will be on the hook either through personal injury litigation if they're not under WSV or through WSD or even the Occupational Health and Safety Act, there would be charges against the employer for allowing that to happen. So, it's safety is a, is a very important one. The other part of safety, the final note I would make on that is if you're dealing with somebody again say to help the very safety conscious environment. If the individual is a recovering addict and they've worked before under the influence and they've had a safety incident,
53:52
even if they haven't, if there's no assurances
53:56
from their physician and I usually get them to demand that they usually won't because they walk it back, but that the person is fit and safe to return to work. That is. And they, you know, essentially guarantee the person will remain fit and say if you're not getting those assurances from a from a appropriate healthcare practitioner, that's another basis to say we're not returning you and you're out there on an unpaid leave until you take an in house program like in count in person county treatment or whatever it might be. So again, you know, you don't have to just roll over and provide
54:26
whatever it is you have the employees asking for
54:29
cover to cover the top up wages issue and the eventual termination for frustration. The other, I just have a note here about last chance agreements often used in the union environment, but I also deploy them in the non-union environment. And I find they could be helpful to say, especially if somebody's got a history of brutal attendance or an addiction and relapse, they could be helpful for the parties to essentially formal agreement that sort of says, look, we've accommodated this. You've missed this many days over this many years. We spent this much time,
55:00
this much money, whatever it might be that you've done to accommodate. You put all that in the document. A, it brings it home to the employee, but B, it also sets it up for eventual termination or in some cases the employee breeds it as a last chance agreement. If they don't get their act together, their employments at an end under the terms of the agreement, and they'll only get employment standards at most if it's related to disability and it also, if they later filed a human rights code, complain. That's good evidence of our accommodation efforts, whether on attendance or on
55:30
modified duties. So, it could be an important useful tool. And sometimes it does succeed. Like I said, the employee actually responds to it when they see what the employer has done and it's right in front of them. What the impact is being on other employees and the fact that they've signed something that says absent sustained improvement, their employment is at an end. So, something that could be certainly fine to be find useful
55:55
the frustration, which is that other end path, right. So, if these return-to-work process doesn't get them in the in the office store, it gets them out the office store through frustration. And this just sort of neatly summarizes the legal principles. But ultimately, you know, the idea is just as its name implies, the employee relationships frustrated because it's not the employees’ fault if it's a legitimate disability, nor is it the employers’ fault through no fault of either party. The relationships impossible to perform
56:25
that they can't do the work for the compensation that was agreed to. And if there's a prolonged disability or illness or a permanent impairment, sometimes that might happen immediately. If there's a serious permanent cognitive impairment or God forbid paraplegic or something that you know it might, that might be the end of the accommodation analysis right then and there. But those elements are all required. The other important point to know is always check with your insurance carrier to make sure that if you terminate for frustration
56:56
that it does not have an impact on their benefit, continued benefits eligibility and normally it doesn't. The vast majority of agreements I've seen with Manulife, Sun Life and the other big players, for example, as long as the employee’s disability arose while they're employed and they started the STD and L or LD process while they're employed, the fact that they're subsequently terminated does not normally negate their ability to go on to LD. And if they're on Ltd or can go on to Ltd, they're much less likely to challenge
57:26
the any adverse employment consequences. So definitely check that.
57:32
And then finally, I see it's 1157. This is the final slide. I'll just leave it there. And all of you I think will get access to these slides in any event. But I just sort of sat out the at the end of the day, ensure that you go through it timely and ongoing return to work process. Get out early. The longer the employees out, the longer they're likely to stay out. Keep them engaged. That is your best opportunity to get them back in the workplace. Think about other avenues for information, whether it's psychological assessments,
58:02
they ease ironies, any, you know, any number of things. Make sure that if it's a case where the employee is requesting accommodation, that you consider what available work there is in the workplace, and have it documented that you've gone through that analysis. You can't just sort of say, I wouldn't think they could do anything. And so, we terminated. I mean, the Human Rights Tribunal has awarded damages where an employer properly terminated for frustration, but because they didn't go through the process. So, they were lucky that tribunal agreed with them, but they still got punished with the damages award because they didn't properly go through
58:32
the case management process. And then obviously meet with the employee. If there's a union involved, as I said, make sure you involve them. That can't hurt.
58:42
Document, document, document including and this is the advantage of third-party case management absent management services. They have really good case notes are used to doing that. We have a chronology with brief notes about the nature of the discussion. You have like a nice ready-made exhibit and the event wherever challenged on termination to show all the efforts that were made to engage the employee and accommodate them. Same thing when you're offering accommodation or you're cautioning them about their absenteeism. Make sure it's in writing so that we have a record. And then
59:13
lastly, if it's WSIB, you know, use them, work with them. They can be helpful in terms of leveraging compliance by threatening benefit coverage, loss of earnings, benefits and things. And then of course, if you're using a Ltd carrier adjudicator, obviously they all have the focus of relevant information and that be something important to follow up with them. So, I just made it out of the wire. I appreciate everyone's time and hopefully you found this of interest and useful high. Right.
Ryan Haffner
59:44
Seann, thank you very much. Yeah, exactly on time. Good job. So, I'd say there's a number of Q&A questions. So, thank you guys for making use of the chat function. We've recorded all the questions that we never got a chance to answer, and we'll be posting that on our microsite. We will be sharing a copy of the recording and the deck very shortly after the presentation today. So, I think everyone for taking the time to meet with us today and present with us. Thank you, Seann for your time today.
1:00:15
And we wish you all the best and well. Happy lunch!
Seann McAleese
1:00:20
Take care of everybody.
