Does an Employee Have a Duty to Participate in the Accommodation Process?
A recent decision by the Divisional Court in “Katz Group Ltd. V. Clarke” 2019 ONSC 188 “Katz”, reinforces the notion that, just as employers have a duty to accommodate, an employee also has a duty to participate in the accommodation process. In this case, the employee, Mr. Clarke, was a Store Manager at a Pharmacy under the Katz Group Ltd. umbrella and took a leave of absence in 2008 because he was suffering with depression. While on leave, Mr. Clarke had two unfortunate slip-and-fall accidents which limited his ability to return to work for an extended period, and he remained on short and long-term disability through his employer’s insurance plan during this time.
In 2013, Mr. Clarke provided a doctor’s note to his employer which communicated that he was completely disabled, and there would be no job that he could perform in his current condition. In addition, he provided a medical questionnaire which reconfirmed the fact that he was unable to stand, walk or sit for long periods of time. The employer’s insurance company, upon learning the new facts about Mr. Clarke’s medical situation, determined he was unable to perform the duties of his role, and as such, communicated to the employer, there was no reasonable expectation that Mr. Clarke would be able to perform his duties for the foreseeable future.
Following these developments, the employer communicated to Mr. Clarke that he would be terminated on December 31, 2013, since his employment had been frustrated. The employer generously extended 8 weeks’ pay in lieu of notice, and 14 weeks’ severance pay. Shortly thereafter, Mr. Clarke’s legal counsel reached out to the employer to communicate that Mr. Clarke had been making every attempt to get well, so that he could return to work as soon as possible. Off the back of this new development, on two separate occasions, the employer requested medical and other related information regarding timing around Mr. Clarke’s return to work, but, both requests went unanswered.
Upon termination, Mr. Clarke initiated a legal action against the employer, under the Ontario Human Rights Code, for wrongful dismissal. The employer responded with a motion for summary judgement, which was dismissed by the motion judge since, in his opinion, the case was “triable” given Mr. Clarke’s willingness to return to work.
The decision & Key Take-aways:
The Divisional Court found there was medical evidence provided to the employer suggesting Mr. Clarke was permanently disabled, and therefore, unable to return to work for the foreseeable future. Although Mr. Clarke clearly communicated his intent to return to work, he was unable to produce the appropriate medical documentation that he would, in fact, be able to do so. As such, the decision went in favor of the employer.
What Employers can do for Due Diligence:
According to a policy from the Ontario Human Rights Commission on preventing discrimination based on mental health, disabilities, and addictions, in order to best prepare for an accommodation, employers should:
- Understand that the duty to accommodate is informed by three principles: respect for dignity, individualization, and integration and full participation.
- Be aware that the duty to accommodate mental health disabilities is no less rigorous than the duty to accommodate physical disabilities.
- Understand that each and every accommodation case is unique and should be treated accordingly.
- Work with an expert accommodation provider or Occupational Therapist on an ongoing basis to manage the accommodation process.
- Accept requests for accommodation in good faith, and take an active role in exploring traditional, and alternative solutions.
- Conduct open discussions about possible accommodation solutions to gain more insight.
- Be aware that an accommodation may be necessary even in cases where the employee has not made a formal request.
- Implement accommodations in a timely manner.
- Be discreet, respectful, and maintain trust and confidentiality.
How Gowan Consulting Can Help:
- Provide support for policy and procedures development.
- Train managers and employees on the duty to accommodate.
- Provide objective Occupational Therapy assessments for accommodation requests.
If you would like to learn more about workplace accommodations, please check out our services for Providing Early Intervention and Return to Work planning.
Gowan Consulting has many resources to assist employees with accommodation concerns.
If you’d like to learn more about workplace accommodation or return to work, book one of our upcoming fall workshops today to secure your spot, and take advantage of our early-bird pricing!
- RTW Facilitation Skills Workshop happening this November 11-13, in London ON
- Mental Health and Return to Work happening this September 24-25, in Mississauga ON
Want to know how we can assist you personally in the workplace? Contact Us!
“Katz et al. v. Clarke” – 2019 ONSC 188 “Katz”
“Divisional Court Confirms That Employee’s Desire to Return To Work, Without More, Does Not Trigger The Duty To Accommodate” – By Maria Constantine