Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on May 26, 2022 within the category "Medical-legal issues". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.


An employee at the Canadian War Museum was diagnosed with an adjustment disorder along with associated anxiety and depression.  The employer terminated her after she had been on a medical leave for nine months because it was alleged that she had provided insufficient medical documentation and had resisted an Independent Medical Examination (IME).  The arbitrator allowed the grievance, ruling that the employee’s submitted medical documentation was sufficient. 

Legal Citation

Canadian Museum of History v Professional Institute of the Public Service of Canada, 2022 CanLII 37248 (CA LA) May 2, 2022 (Arbitrator Colin Johnston)

Facts

The employee began work as a professional historian working at the Canadian War Museum (the “Museum”) in Ottawa in April 2016.  

In June 2018, she left work on an unpaid leave following a series of conflictual incidents at work.  

While on leave, she was diagnosed with an adjustment disorder, along with associated anxiety and depression.  Leading up to her decision to take a leave from work, the employee had received a lower performance evaluation and had felt targeted at work and slighted by the reassignment of certain duties. 

Among the conflicts at work which led to her medical leave, there were two in particular.  First, her request for unpaid parental leave during the summer of 2018 – after having been granted similar leaves during the previous two summers – was refused, caused her considerable distress.  

Second, a controversary arose over a reference to Gaza as “occupied territory” involving a photography exhibit at the Museum that the employee had curated. 
 
When the employee initiated her unpaid medical leave, the Museum management was suspicious of its validity, as it overlapped with her parental leave request.  

Her family physician referred her to a psychologist, who established her medical diagnosis, and she began treatment.  

The Museum viewed the medical notes from her physician as insufficient and overly vague.  It hired a doctor to perform a medical review (referred to as a Time Loss Review).  This doctor disagreed with the diagnosis of her physician and psychologist, and recommended instead that she return to work.  The Museum also requested that the employee undergo an Independent Medical Examination (IME), but the employee’s union opposed this. 

When the employee’s application for long-term-disability (LTD) benefits was denied by the workplace medical insurer, the Museum took this as further evidence of a lack of medical justification for her leave.  

The Museum sent a series of a letters requesting further health information. She viewed these letters as intrusive and a source of stress.  

Eventually, the Museum send her a final letter, requiring her to return to work on a specified date or her employment would be terminated.  As this date was prior to the end of her physician’s recommended medical leave, she did not return and her employment was terminated in March 2019. 

Analysis

At arbitration, the Museum argued that it had given the employee numerous opportunities to substantiate the health reasons for her absence from work, and she had failed to comply.  It denied that it had targeted her before she went off work, and asserted that it had legitimate reasons for questioning her absence from work as it coincided with her request for a further parental leave. 

In response, the union maintained that the employee’s absence was medically justified, and that the Museum discriminated against her on the basis of disability. 

The arbitrator, Colin Johnston, began his analysis by acknowledging that a marker of adjustment disorder is that it distorts an individual’s understanding of events and, as such, her honest belief that she was being targeted was important.  Indeed, he recognized that some of the workplace events would understandably be upsetting and humiliating for the employee.  In the end, the arbitrator did not accept the Museum’s argument that, since the diagnosis was based on unproven harassment, it should be rejected.  

He pointed out that the medical information reasonably required by an employer in the event of an employee’s health-related absence from work can increase in relation to the length of the medical leave, and that this can still be required even if the leave is unpaid: 

[252] It is reasonable for an employer to request medical information to support an employee’s ongoing absence. It is generally accepted in the arbitral case law that an employer is not entitled to detailed medical information for short illnesses; however, the longer an employee is off work, the more medical information an employer may request to support their absence. This does not mean that an employee must disclose a lot of private medical information, including their diagnosis. Still, they can be asked to provide, at the very least, the nature of their illness, prognosis, and confirmation they are following the appropriate treatment. The fact that the Grievor’s sick leave was unpaid does not change this obligation. [Emphasis added]

While the arbitrator agreed with the Museum that some of the medical notes were deficient, he stated that other health-related information which had been provided met the test of sufficiency and, in particular, the information contained within the employee’s LTD application.  

Arbitrator Johnston criticized the union for not doing more to intervene to end this dispute over additional medical evidence, rather than engaging in an unproductive and combative email exchange, as it had. 

Regarding the denial of LTD benefits, the arbitrator found that, while the insurer’s denial may have established that the employee was not totally disabled from performing her work duties, the issue was not whether she could perform her duties, but whether she was medically fit to return to work.  Her physician and psychologist had found that she was not fit to return, and the arbitrator viewed them as in the best position to determine the state of her mental health.  Their opinion was preferred over the finding of the insurer and the Time Loss Review, with the latter involving a single ten- to fifteen-minute telephone conversation with the employee’s physician and no meeting with the employee herself or review of the physician’s notes.  

In the Time Loss Review, the reviewing doctor took particular issue with the subjective nature of the employee’s health claims, but Arbitrator Johnston found this to be overly strict:

[279] If I were to accept Dr. Karpilow’s [author of the Time Loss Review] opinion that I cannot rely on the subjective reporting of symptoms, few mental health diagnoses would qualify as a disability. Arbitrators have recognized that the subjective reporting of symptoms is an inescapable part of diagnosing mental health disorders. The fact that the physician’s assessment weighs heavily on subjective factors does not negate the diagnosis. [Emphasis added]

The arbitrator then turned to the Museum’s request for an IME, finding that it should requested this information directly from the employee’s doctor’s first:

[284] A request for an IME should only come as a final step in gathering the necessary medical information. Compelling an employee to undergo a medical assessment from a doctor who is not their treating physician is generally viewed as medically invasive and only justified when there is an apparent conflict in the medical evidence or a complete lack of medical information. The employer must exhaust other less invasive ways to obtain the information it needs before resorting to an IME. Neither the employer nor Sun Life [the insurer] took any steps to request the information directly from the Grievor’s doctors. [Emphasis added]

As the arbitrator found that the union had established prima facie evidence that the employee was unfit to return to work, the onus shifted to the employer to provide evidence to the contrary.  

He ruled that the Museum was unable to refute the employee’s evidence.  The arbitrator disagreed with the Museum’s claim that a leave of absence is not a form of accommodation.  As the employee here was diagnosed with an adjustment disorder that required time off to improve her mental health, the museum had failed to accommodate the employee’s disability, and there was no evidence that more time off work would have caused the Museum undue hardship.

The union’s grievance was upheld.  The employer’s actions breached the Canadian Human Rights Act and the anti-discrimination provisions in the collective agreement.  

Regarding remedies, the employee was ordered to be reinstated and compensated for lost wages.  She was also entitled to human rights damages, which were to be resolved by the parties. 

Implications for Employers

Labour arbitrators accept the general rule that an employer can reasonably require more medical documentation in cases of extended medical leaves.  However, an IME should be viewed as a last step.  It can only be justified if other less invasive measures are taken first, and there is no other reasonable way to establish whether the employee is fit to return to work, or requires an extension to her/his/their medical leave.  Additionally, a medical leave of absence is, itself, a form of accommodation if an employee’s medical condition leaves them unfit to return to work. 

Implications for Unions

A union must carefully assess whether an employer’s request for an IME is justified in the circumstances.  Where there is genuine conflict in the medical evidence, or where the submitted medical evidence is vague to the point of being unreliable, then an IME might be justified.  However, a union would have a compelling reason to oppose an employer’s request for an IME where the employee has provided a trustworthy medical documentation which allows the employer to reasonably assess the employee’s workplace capabilities and limitations.