Legislation requires employers not to discriminate against employees on a range of listed grounds, including disability. As part of this duty, employers must accommodate the needs of employees with disabilities up to the point of undue hardship. However, integrating employees with disabilities into the workforce is not solely a matter for employers. Employees must cooperate with employers and take reasonable steps to help facilitate accommodation. 

This article considers the role of employees in the accommodation process, along with a recent decision of an adjudicator, appointed under the Canada Labour Code (Code), where an employee’s complaint of unjust dismissal was met with the employer’s claim that the employee did not cooperate with the employer in its efforts to accommodate his disability. 

Employers cannot discriminate against employees and have a duty to accommodate

There are a wide variety of grounds on which employers cannot discriminate against employees, including disability. This prohibition is found in the Ontario Human Rights Code, as well as the Canadian Human Rights Act which applies to employees in federally regulated workplaces, including telecommunications companies.

When an employee needs a change or modification to allow them to work, an employer must accommodate this when the need is based on one of the grounds of discrimination. The employer is required to take such measures up to the point of undue hardship. For example, an employee with a disability may need specific adjustments to allow them to perform effectively, such as special equipment or changes to their duties or work schedule.

Employees need to participate in the accommodation process

The obligation of an employer only extends so far. In particular, there is also a duty on the employee to assist in securing appropriate accommodation. 

Investigating the issue

Firstly, the employee needs to bring the employer’s attention to their situation. 

An employee may need to disclose medical information to the employer to ensure that they have enough information to facilitate accommodations. An employee may also be required to attend a medical examination. However, the employer has no absolute right to request these things. A balance must be struck between the employee’s right to privacy and the employer’s right to have sufficient information to facilitate accommodation. 

Facilitating implementation of the accommodation

While the employee may also be in a position to suggest how to accommodate their disability, they do not have a duty to originate a solution. The employer is often better positioned to determine how the employee can be accommodated without causing undue interference with the business. 

When the employer comes up with a reasonable proposal for accommodation, the employee needs to facilitate its implementation by taking reasonable steps. If the employee rejects a reasonable accommodation, the employer is unlikely to have engaged in discrimination. 

Employee was dismissed after failing to attend an independent medical examination

In Wan v Intek Communications Inc., an employee brought an unjust dismissal complaint under the Code. He was terminated from his position as a warehouse assistant by his employer, a contractor of Rogers Communications Inc. 

After suffering a workplace injury, the employee was accommodated into the warehouse assistant role. In 2016, after taking a functional abilities evaluation, he was offered a work schedule involving micro-breaks and his treating doctor provided documentation to support this. In 2018, after his doctor relied on the previous evaluation to recommend that 5-minute breaks were needed for each 20-minute work period, for five years, the employer requested that the employee participate in an independent medical examination. 

The employee responded, through counsel, indicating that he would take any questions to his treating doctor only. After some back and forth, the employer confirmed that an independent exam was required to determine whether the employee could be accommodated in the long term. After the employee failed to attend a scheduled exam, he was terminated for cause. 

Employer’s request for an independent medical examination was reasonable

The Adjudicator found that it was reasonable in the circumstances for the employer to substantiate the treating doctor’s opinion. The more extensive break schedule proposed in 2018 suggested that the employee was suffering from a more severe disability than previously. 

Given that the employer is responsible for ensuring that an employee can safely perform the work, the request for an independent exam was reasonable, especially considering the doctor’s recommendation was based on an out-of-date evaluation. The Adjudicator concluded:

“Given the inadequate medical information provided by the [employee’s] doctor based on long out-of-date information, it is my view … that the Employer acted reasonably in making an appointment for the [employee] for an [independent medical examination] to obtain information about the [employee’s] then current capabilities, at the Employer’s expense.”

Adjudicator dismissed the unjust dismissal complaint 

The Adjudicator explained that where an employee refused to cooperate with reasonable efforts to obtain medical information to support their fitness to perform the work, the employer could withhold employment, which may in an appropriate case include dismissal for just cause. This was such a case, given that the employer had provided a prior written warning, suspension and correspondence explaining that attendance at the examination was mandatory. 

The Adjudicator decided that the unreasonable refusal to attend the medical examination constituted just cause for dismissal and the employer did not engage in discrimination. As a result, the employee’s claim was dismissed. 

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Advice on Discrimination and Human Rights Claims 

If you are an employee and your employer has refused to accommodate your disability, or if you have had a claim filed against you as an employer, the employment law team at Grosman Gale Fletcher Hopkins LLP can help. Our lawyers have extensive experience asserting and defending human rights claims before tribunals and courts of all levels. If you have questions regarding a potential human rights claim, contact us online or call our office at 416.364.9599 to schedule a consultation.