Navigating A Disability At Work: A Practical Summary
Navigating an illness or disability that impacts a person’s ability to do their job can pose challenges for both employees and employers. Employees are often apprehensive about disclosing their health information to an employer, or they might have legitimate concerns about the impact that a prolonged absence from work could have on their future career prospects. Conversely, employers frequently have questions about how to implement accommodations or manage a leave of absence for an employee with an illness or disability. These are sensitive conversations and both employees and employers should proactively seek advice about how to approach them.
Accommodating a disability or illness
Once a disability or illness has been identified and disclosed, employees and employers are required to communicate and work together to identify any accommodations that may be required. Under Ontario’s Human Rights Code (the “Code”), an employer has a duty to accommodate, to the point of undue hardship, needs relating to a Code-protected ground. Generally speaking, providing an accommodation entails making changes to the workplace or the employee’s working conditions in a way that ensures the employee is not unfairly excluded based on prohibited grounds of discrimination. The threshold for what will constitute an “undue hardship” for an employer is a very high one: the onus is on the employer to present concrete evidence proving that the financial cost of the accommodation (even with outside sources of funding) or health and safety risks would create undue hardship for the employer. An employer cannot rely on any other factors (such as, for example, inconvenience, employee morale, and customer preference) to justify undue hardship.
If an employee requires an accommodation, they should notify their employer as soon as possible. An employer should only ask for any information needed to respond appropriately to the request and should take reasonable steps to protect the employee’s privacy as much as possible. Employers must also provide a response to the accommodation request within a reasonable amount of time.
When a leave of absence is required
Employees may require a leave of absence from work due to an illness or a disability, which may require coordination between the employer, employee, and an insurer or government benefits program. Under Section 50(1) and (2) of Ontario’s Employment Standards Act (the “ESA”), an employee who has been employed by an employer for at least two consecutive weeks is entitled to a leave of absence without pay of up to three days in each calendar year if they are required to be absent from work because of a personal illness, injury, or medical emergency. In addition, many employers will opt to provide employees with a greater entitlement than what is contemplated under the ESA, and those terms will normally be found in an employment contract or a group insurance benefits policy. If the terms of an employment contract or a group benefits policy provides a greater entitlement or benefit, then those terms will apply instead of the ESA.
If an employee requires a medical leave, they should advise their employer as soon as possible. Section 50(6) of the ESA permits an employer to request than an employee provide “reasonable” evidence that they are unable to work for medical reasons. What constitutes “reasonable” evidence will largely depend on the facts and circumstances in each particular case, but it will often involve a medical note from a health practitioner. Under a group disability benefits policy, an employee may be required to complete additional forms or provide underlying medical documentation to support an absence. It is important to note, however, that an employer is not entitled to unfettered access to an employee’s medical information: rather, the employer is only entitled to seek information about the duration of the absence, the date that an employee was seen by a medical practitioner, and confirmation that the employee cannot work due to a medical condition. An employer is normally not entitled to specific details about an employee’s health, including any diagnosis or treatment plan, save and except in very specific circumstances. Employees should review any applicable group insurance benefits policy and consult with a lawyer in order to understand their rights if they are considering a medical leave. They should also speak to a medical professional about their health situation in order to determine whether a medical leave is appropriate or necessary.
Returning from a medical leave
An employee who returns to the office after a leave will need support. The employer should be alive to the need for accommodation and to privacy concerns. Other employees may well have questions or concerns and employers will need to tread carefully to respect privacy rights while managing any transitions on their team.
Often, employment issues will arise when an employee is returning to work after a leave of absence. Upon a return to work, an employee will generally be entitled to return to the job they held prior to their leave or to return to a comparable role at the same rate of remuneration, subject to undue hardship. These are delicate and frequently unique situations and the parties involved may have competing interests. We encourage both employees and employers to proactively seek legal advice about how to manage situations involving an employee experiencing illness or living with a disability.
When to consult a lawyer
In many circumstances, employees and employers enjoy open communication and collaborate effectively to accommodate employees experiencing illness or disability. However, there is a lot of room for error and risk. Employees have legitimate interests in having their privacy and human rights respected while continuing their employment, and they may benefit from expert counsel advising them about their rights and providing strategic advice to navigate conversations with their employer. Employers may be exposed to liability if the mishandle these situations. Both employees and employers should carefully document conversations and steps taken to move forward.
Employees should always seek legal advice in circumstances where an employer has failed to appropriately respond to an accommodation request, an employee is denied an opportunity to return to work, or the employer has made a fundamental change to an employee’s employment terms upon a return from a leave of absence for any reason. The team at Mathers McHenry & Co. is always available to assist you if you have any questions.