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Employer justified in requesting IME after grievor struggles to perform under return-to-work plan

Accommodation E-lert, posted on May 28, 2026 within the category "Medical-legal issues".

The union and employer worked out a return-to-work plan in line with medical advice.  However, the employer was subsequently frustrated by the grievor’s progress and paused the plan until the grievor underwent an Independent Medical Examination.  The grievor initially refused to consent, delaying the exam for several months. The subsequent grievance – alleging that the employer failed its duty to accommodate in delaying her return to full-time hours – was dismissed by an arbitrator of the Ontario Grievance Settlement Board.

Legal citation

Ontario Public Service Employees Union v. Ontario (Ministry of the Attorney General), 2025 O.G.S.B.A. No. 104, (October 3, 2025) (Arbitrator McLean) 
 
Facts

The grievor worked as a full-time Court and Client Representative with the Ontario Government and sustained a concussion from a non-work-related accident that led to her being off work for two years. 

The union and employer devised a gradual return-to-work (GRTW) plan where the grievor’s hours would start at four hours per day and would incrementally increase thereafter. 

The grievor was eager to increase her work hours, but the employer subsequently became concerned with her slow work progress and refused to increase the grievor’s hours until she underwent an Independent Medical Exam (IME) to determine her medical ability to do the work. 

The grievor refused to undergo the IME for several months, but eventually complied.  The IME found that the grievor had suffered significant memory impairments and could not perform the duties of her original position.

The union nonetheless alleged that the employer’s conduct had breached its duty to accommodate the grievor in not increasing her hours to full-time work.
 
Analysis

The arbitrator found that the employer’s accommodation process was reasonable with due consideration of the grievor’s medical evidence.  Further, the arbitrator found that the employer acted in good faith throughout the accommodation process:  

[67] …To put it simply, [the employer] wanted [the grievor] to succeed and return to her role in the Court system. They worked very hard to make that success happen, but they became honestly concerned that she would not be capable of doing the job in the end.

In contrast, the arbitrator rejected the union’s argument that the employer failed to communicate its expectations for the accommodated position to the grievor: 

[68] …This is not a case where the Employer had standards in its mind (such as, for example, completing four estate files per week) and was concerned when they were not met. The Employer simply wanted her to continue to make progress in the number of hours she was working but, more importantly, in grasping the work. This was not a case where specific expectations could have helped the Grievor.

Instead, the arbitrator agreed with the employer that the problem was the grievor’s inability to complete the work at issue: 

[69] I am satisfied that while the Grievor was motivated to increase her hours and did so, she struggled with the estates work that she was assigned. She did not progress at an appropriate rate and had difficulty retaining her training as she moved to a new estates task. I also am satisfied that the estates work was only a small part of one of the functions of the Grievor's job.

The arbitrator found that the employer’s response to its concerns was reasonable, stating:

[76] …the Employer did something completely rational and appropriate in full compliance with its duty to accommodate; it sought a medical opinion to ensure that the Grievor was medically capable of doing the work of her position and that she was not being harmed by doing the work. In the meantime, the Grievor's hours of work were frozen at their then current levels as a cautionary measure. Again, this was completely appropriate and, as it turns out, based on the IME report, justified.

Conversely, the grievor’s actions played a key role in delaying the accommodation process: 

[81] To the extent there was any delay in the IME process that delay was entirely caused by the Grievor. The Grievor knew full well what was required of her to have the IME proceed and yet insisted on having her concerns dealt with first.

Lastly, the arbitrator found that the IME was a minimally intrusive method for assessing the grievor’s capabilities: 

[82…First, under the collective agreement it was entitled to have the Grievor undergo an IME, certainly so long as it sought one in good faith. I am satisfied that the Employer always acted in good faith. Second… the Grievor had not provided information from a doctor for a considerable period of time. The Employer was entitled to have the Grievor see a specialist who could provide an assessment of the Grievor's state of health.

The arbitrator concluded that the employer had met its duty to accommodate the grievor and dismissed the grievance. 

Takeaways for Unions

This case illustrates that the duty to accommodate is a collaborative process.  Both employees and employers have responsibilities to make accommodations work, and unions should encourage their members to cooperate with employers.  Where the union determines medical information requests are appropriate, any efforts by employees that delay the accommodation process will not be helpful. 

Takeaways for Employers

When confronted with an accommodation request, employers should respond in a rational and gradual manner by requesting medical information from an employee before taking action.  Further, good faith can be demonstrated by the employer by following a rational and reasonable accommodation process.