Dealing With Employees Who Deny Unfitness To Work
Previously printed in the LexisNexis Labour Notes Newsletter.
A roadmap for dealing with disabled employees who are unfit for active employment, but who deny being unfit, is detailed in Kelfor Industries Ltd. v. United Steelworkers, Local 2009 ([Grievor] Medical Leave and Termination Grievances) (November 21, 2017 – unreported at time of writing) (Lanyon).
The Grievor was a long-service employee who performed a variety of jobs in a safety-sensitive lumber drying business. In recent years, his absenteeism rate increased, he became belligerent and insubordinate, and he was seen sleeping at work. In April 2016, the Grievor left work without permission, claiming that he needed to see a doctor. The Employer reviewed the Grievor’s employment file, which included WCB disclosure material and other medical information, and became seriously concerned that the Grievor may not be medically fit for active employment.
The Employer placed the Grievor on a mandatory medical leave until he could provide a clear, current and credible medical opinion declaring his fitness to return to work. A short time later, the Grievor provided a doctor’s letter to the Employer that he hoped would get him back to work. However, the Employer concluded that this letter was insufficient. It wrote to the Grievor to ask that his doctor answer specific questions so it could understand whether the Grievor could return to safe and productive active employment with or without a workplace accommodation.
From the lengthy correspondence that followed, the Employer concluded that the Grievor’s own doctors were unable or unwilling to provide the information required so it offered to arrange and pay for an independent medical examination (“IME”). It warned the Grievor that if he chose not to participate in the IME, his employment would be terminated on non-culpable grounds. The Grievor ultimately refused to participate fully in the IME and, as a result, the Employer terminated his employment.
Argument and Decision
The Union grieved the Grievor’s mandatory medical leave, the Employer’s requirement that he submit to an IME, and the Grievor’s dismissal for refusing to participate fully in the IME. It argued that the letters from the Grievor’s doctors were sufficient to clear the Grievor’s return to work and that the Employer had no grounds to insist on an IME. Arbitrator Stan Lanyon, Q.C. dismissed the Union’s arguments and upheld the Grievor’s dismissal.
Mandatory Medical Leave
Arbitrator Lanyon recognized the Employer’s statutory requirement to maintain a safe workplace and held that it had reason to be concerned about the Grievor’s fitness for work. As such, it was reasonable for the Employer to withhold him from active service pending receipt of additional medical information:
I conclude that based on the WCB medical information and reports, the Orion Health Report, and the Grievor’s conduct, it was reasonable for the Employer to require further medical information from the Grievor in order to determine his fitness to return to work, and to hold him out of service on medical leave until then.
The arbitrator noted the conflicts in the medical information that the Grievor gave to the Employer and recognized that much of it was based on the Grievor’s unreliable self-reports. He held that it was reasonable for the Employer to require the Grievor to fully participate in an IME rather than ask the Grievor’s own doctor or doctors to attempt to reconcile the conflicts:
I conclude that it was reasonable for the Employer not to go back to Dr. Lakher, the Grievor’s family physician, to resolve the differences between his report, and the physician records of the Grievor’s former family doctor, Dr. Vanbuuren. It was also appropriate for the Employer to seek an IME that would include blood and urine samples, as well as a Pharmanet search, in order to determine the Grievor’s fitness to return to work.
An Independent Medical Examination was the only reasonable and objective way to resolve this contradictory medical evidence.
The arbitrator accepted that once the Grievor refused to participate in the IME, the Employer was entitled to terminate his employment on non-culpable grounds. Although employers cannot discipline employees who refuse to consent to medical examinations, their employment can be terminated, on a non-culpable basis, if they refuse to provide medical information to establish their fitness to return to active employment in the foreseeable future with or without a workplace accommodation:
I conclude that the Employer, when faced with the Grievor’s refusal to undergo an IME, had no ability to determine if the Grievor was fit for work, with or without limitations, for the foreseeable future. Absent such information the termination was justified. His dismissal was therefore not disciplinary but rather based on non-culpable grounds; that is, the fact that the Grievor elected to not provide medical evidence that he was fit to return to work safely in the foreseeable future.
I further conclude that the Employer was properly attentive to the issues of the Grievor’s privacy in this case. The Employer, throughout its correspondence, repeatedly stated that it would keep all medical information confidential. Further, no issue of accommodation arose in these circumstances because the Grievor refused to undergo a medical examination.
Lessons for Employers
- Cases like this are challenging. Employers must be mindful of the applicable statutory, privacy and human rights principles. The detailed correspondence reproduced in this decision provides a useful roadmap for how this type of situation can be successfully managed.
- If employers have a reasonable concern about the ability of an employee to safely and productively work, they have a statutory duty to withhold the employee from active service pending receipt of a clear, current and credible medical opinion in support of his or her active employment.
- When employers are presented with insufficient or contradictory medical information from an employee’s own doctors, it may be appropriate to require the employee to participate in an IME.
- Employees who refuse to participate fully in a reasonable IME are subject to dismissal on non-culpable grounds.