Employees often work with disabilities. The health issues they experience do not seriously affect their ability to complete their job duties. But sometimes, illness or injury becomes too much and an employee requires time away from work. This can be a difficult period. Most people do not like being off work and want to get back as soon as they are well. They see their doctor and listen to their doctor’s advice about when to return and under what circumstances.
When is your own doctor’s advice not good enough?
In a recent decision, the Divisional Court reviewed the circumstances under which an employer can request an employee to visit a doctor of its choosing. This is called an independent medical exam (IME). Essentially, the employer wants a second opinion on what your doctor has recommended.
In Bottiglia v Ottawa Catholic School Board, Mr. Bottiglia was a Superintendent of Schools. He became depressed when he was passed over for the position of Director of Education. Due to his depression, he was off work for several months.
When he wanted to return to work, his doctor recommended a lengthy accommodation period.
Mr. Bottiglia’s employer had some concerns. His doctor had previously stated that his condition had been resistant to treatment and he would require an extended period of time off work. Then, it seemed to the employer that his doctor did an about-face on his medical assessment and stated Mr. Bottiglia could return to work. This return date also coincided exactly with the end of Mr. Bottiglia’s paid sick leave.
The employer requested Mr. Bottiglia visit another doctor for an IME. He initially agreed. But when he saw that the employer had advised the second doctor that it was concerned Mr. Bottiglia’s return was premature and based on the end of pay instead of health, he refused to attend the appointment.
Mr. Bottiglia resigned and brought a human rights application claiming that his employer had failed to accommodate his disability resulting in lost wages and damage to his dignity and self-worth.
The case made its way through the Human Rights Tribunal of Ontario and to the Divisional Court.
Significantly, the Court held that the Human Rights Code gives employers the right to ask for an IME in certain circumstances. Previously, many believed an employee’s contract needed to state that an employer had the right to ask for an IME, otherwise the employer could not ask for one.
However, this do not mean an employer may always require an IME. It is only allowed if it will help the employer determine what is required to accommodate an employee. And, there must be a reasonable basis to request it. For example, when inadequate or conflicting medical information is provided by the employee. Employers must also be unbiased and neutral when requesting an IME from a doctor.
If you are off work with a disability and have been asked to attend an IME, you should speak to an employment and human rights lawyer. You may reach us at MacLeod Law Firm at [email protected] or 647-204-8107.
The Employment Standards Act the (“ESA”) contains a provision which allows for temporary lay-off. Pre Covid-19, the ESA told employers that they could lay off an employee for 13 out of 20 weeks, or 35 out of 52 weeks if the employer continues the employee’s benefits, for example.
As we have written before, termination clauses may have a significant effect on how much money you receive if you are terminated. If you are fired because of a business decision and not misconduct, it is the without cause termination clause that determines how much...
With the numbers of COVID-19 cases rising again, especially in the GTA, many employees are asking me as a Toronto employment lawyer what happens if they become sick and they are forced to stay home for 14 days. Following the end of the Canada Emergency Response...