When an employee suffers from a disability, under the Ontario Human Rights Code an employer has a duty to accommodate that employee to the point of undue hardship. During the accommodation process, there are obligations on both the employer and the employee. The Ontario Human Rights Commission lists some of these obligations as follows:
- explain why accommodation is required, so that needs are known;
- make his or her needs known to the best of his or her ability, preferably in writing;
- answer questions or provide information about relevant restrictions or limitations, including information from health care professionals;
- take part in discussions on possible accommodation solutions;
- work with the employer on an ongoing basis to manage the accommodation process;
- accept the employee’s accommodation request in good faith;
- take an active role in making sure that alternative approaches and possible accommodation solutions are investigated;
- grant accommodation requests in a timely way, to the point of undue hardship, even when the request for accommodation does not use any specific formal language.
Although uncommon, if an employee if off work due to a medical reason and thoroughly disregards these obligations, it is possible that a court could find that he abandoned his employment position. The occurred in a 2015 decision Betts v IBM Canada Ltd., 2015 ONSC 5298.
Antony Betts was employed by IBM Canada Ltd. as a Learning Specialist. He suffered from major recurring depressive disorder and anxiety disorder. This disability affected Mr. Betts significantly from October 2013 to July 2014. During this time, Mr. Betts was absent from work and did not submit the paperwork needed to apply for short-term disability benefits. During this time, IBM sent Mr. Betts five letters providing information on how to apply for STD benefits and asking him to send updated information about his accommodation needs. Mr. Betts ignored these letters. He also relocated. IBM eventually determined that he had abandoned his employment. The court agreed with IBM.
Lessons for Employees
Should you suffer from a disability requiring a medical leave from work, in nearly every situation, your employer must accommodate you. However, you must inform your employer of your needs and provide up to date information. You are not required to disclose the specific diagnosis causing the medical leave, but you must communicate with your employer. If you are requested to provide information and given a deadline, comply with the deadline. If you cannot, then let the employer know why you cannot meet the deadline. Accommodation is a two-way street requiring an employee’s participation. If you participate, and the employer does not accommodate your needs, you may have a legal claim against the employer for breach of your human rights.
If you have questions about disability accommodation or human rights, please contact us at [email protected] or 647-204-8107.
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