In a recent decision, Donaldson and Western Grain By-Products Storage Ltd., the Federal Court of Appeal says that it is "reasonable" to request more or better medical information when the circumstances warrant that request. As always, it is worth reading the full decision for additional nuance and guidance and you can do so by clicking on the above link.
An employee left work at a grain terminal in Thunder Bay, Ont., in May 2007 complaining of abdominal pain and vomiting. He was hospitalized for approximately 10 days. A month after getting out of the hospital, he filed a claim with the Ontario Workplace Safety and Insurance Board (WSIB) saying that the symptoms he experienced may possibly have resulted from an allergic reaction to grain dust. This WSIB claim was dismissed.
In October 2007, the employee provided a note from his physician saying "Mr. Donaldson is now capable of returning to his job and employment." The employee was told that he could not return to work until he provided "a better doctor’s note as to his fitness level in relation to his duties and the work environment." In mid-November, the employee complained to Human Resources and Social Development Canada (HRSDC) claiming he "was not allowed to go back to work with a Dr.’s note, I feel unjust dismissal." When responding to an inquiry from HRSDC in mid-December, the employer said that it found the doctor’s note "suspicious" and had requested a better note from the appellant."
In March 2008, the employer wrote to the employee asking for the "previously requested information" including a doctor’s certificate saying that he was unable to work between May and October 2007, and a current doctor’s certificate confirming he was fit and able to resume normal work duties.
An adjudicator appointed under the Canada Labour Code concluded that the employee had been constructively dismissed (on the basis of the request for better medical information) and that his dismissal was unjust. The adjudicator also concluded that the request for further medical information was unnecessary. On judicial review, a judge concluded that the adjudicator’s decision was unreasonable and set it aside. The employee appealed to the Federal Court of Canada.
What did the Federal Court of Appeal say?
The Federal Court of Appeal ultimately found that the request for further medical information was reasonable and set out the context for that request saying:
"It is important to consider that the appellant had been off work for close to six months when he attempted to return to work, and that he had been hospitalized for nearly two weeks at the beginning of this period. The appellant had also indicated to the respondent during the summer months that he remained unwell and could not return to work. In addition, prior to the events in question, the appellant had never been off work for such a long period, nor had he ever made any WSIB claims.
"As mentioned above, while the WSIB report indicated that the appellant may not have suffered from an allergy to grain dust, it clearly indicated that as of Oct. 17, 2007, the appellant was not particularly well.
"The adjudicator improperly distinguished Re Thompson General Hospital, which stands for the proposition that in certain circumstances, employers may demand further medical information of employees before allowing them to return to work after being on sick leave. Considering the factual circumstances, it was reasonable for the respondent, who has an obligation to ensure the safety of its employees, to request further medical information from the appellant upon his return. The two-line doctor’s note that the appellant provided did not contain enough information for the respondent to satisfactorily conclude that the appellant may safely return to work.
What this means for employers returning an employee from a protracted sick leave
Employers may demand more detailed medical information before allowing an employee to return to work after being on sick leave, but only if it is reasonable. The employee had been off work for a significant period of time, there was some evidence that the employee was not "particularly well" while he was off of work, and the only medical information he provided was a brief note immediately before he wanted to return to work. The Federal Court of Appeal was clear that an employer has an obligation to ensure the safety of its employees and, in some cases, this provides the "reasonableness" necessary to request further or better medical information before returning the employee to the workplace.
This decision is a reminder to have an absence management system in place that keeps medical communication relevant and up-to-date throughout the period of an absence, particularly when the absence is for a protracted period.
For more information see:
- Donaldson v. Western Grain By-Products Storage Ltd., 2015 CarswellNat 608 (F.C.A.).
Lisa Gallivan is a partner with Stewart McKelvey in Halifax practising labour and employment law. She can be reached at (902) 420-3392 or email@example.com. Alison Strachan is an associate at Stewart McKelvey in Halifax, also practising labour and employment law. She can be reached at (902) 420-3387.