Do you have an employee who is absent because of a medical issue, but will not provide the necessary paperwork to a third-party disability insurance provider? We often get calls from frustrated employers who are unsure how to proceed when such a situation arises. A 2015 case from the Ontario Superior Court offers employers some direction.

Betts v IBM Canada Ltd., 2015 ONSC 5298

Mr. Betts began working for IBM in 1999. In 2008, he began to suffer from a major recurring depressive and anxiety disorder for which he took medication and received therapy. He had two major depressive episodes, one in 2008/ 2009 and one in 2013/ 2014. In 2008/2009, he went off on short-term disability and completed all the necessary paperwork to do so. In mid-October 2013, Mr. Betts stopped attending work. Despite receiving instructions to complete the necessary forms by November 5, 2013, Mr. Betts failed to do so.

Between December 2013 and June 2014, IBM sent Mr. Betts five letters which outlined his options in the face of his refusal and/or inability to comply with the short-term disability plan requirements. He was advised that he would be considered to have voluntarily resigned if he did not undertake one of the available options. He continued to provide incomplete information.  In the final letter sent on May 15, 2014, IBM advised that he had until June 9, 2014 to submit additional information for his second and final appeal. He once again failed to submit the necessary information. He emailed IBM advising that he would not be returning because “his doctor’s not still applied.” The doctor’s note, as he had been advised, did not comply with the physician requirements of the disability plan.  On June 30, 2015, IBM considered Mr. Bett to have voluntary left his position. Mr. Betts sued for wrongful dismissal, but the Courts agreed with IBM stating “[i]t is difficult to imagine what more the defendant could have done during the plaintiff’s 8 month absence…”

Lessons for Employers

1. Maintain open and clear communication with the employee. Be sure to advise the employee in writing of his or her obligations and what the consequence will be for failing to comply.
2. Give the employee multiple warnings and opportunities to adequately comply. Although this can extend the timeframe of an unapproved absence, it helps demonstrate that the employer did everything that it could to assist the employee to comply and a finding of abandonment is more likely.
3. Keep in mind that as an employer, you still have a duty to accommodate to the point of undue hardship under the Human Rights Code. Just because a third-party insurance provider denies a claim, it does not necessarily mean that there is not a means by which the employee can be accommodate. The case described above did not address any Human Rights Code.

If you have any questions about an employee taking medical leaves of absences and your duties as an employer, please contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to speak to you.