SICK LEAVE RETURN OFFERS A GOOD LESSON

Employee able to work just as paid benefit runs out, writes Howard Levitt.

How should employers deal with employees who invariably manage to provide medical notes, generally saying little, just at the opportune moment? It is one of the most intractable problems Canadian HR managers face.

My usual advice is to require the employee’s doctor to provide a list of functionalities and limitations and then design a job accommodating those, rather than accepting the verdict that the employee is amorphously “Unable to Work.” And if that does not work, to insist upon an Independent Medical Examinations (IME). But can employers force employees to attend them?

Marcello Bottiglia, superintendent of schools for the Ottawa Roman Catholic School Board, was responsible for curriculum, continuing and community education and the supervision of three families of schools. But when the school board appointed James Hanlon as its director of education, without even permitting Bottiglia to apply, he felt distraught and betrayed. He never returned to work.

Bottiglia had accumulated 465 sick days and, during that time, began to see a psychiatrist, a Dr. Levine, who diagnosed him with a unipolar depressive disorder. Dr. Levine’s view was that a return to work risked a relapse. But, only a few months later, just as Bottiglia’s sick leave was expiring, Dr. Levine’s opinion changed. He now recommended a return on a graduated basis over six to 12 months, with no guarantee at the end that Bottiglia could even resume full-time employment. Not a very satisfactory solution for the school board.

Hanlon was concerned at this apparent contradiction and lack of any clear prognosis. He also questioned whether Dr. Levine even understood the demands of the workplace or of Bottiglia’s job. Perhaps most of all, he was skeptical of Bottiglia’s new-found ability to work coinciding with his sick pay ending. As result, Bottiglia was ordered to undergo an IME.

The parties skirmished over terms. After the board listed its concerns about Bottiglia to the proposed examiner, Bottiglia refused to attend, claiming that the examiner was prejudiced.

At a standstill, Bottiglia resigned and filed a claim with the Ontario Human Rights Tribunal. The tribunal found that Bottiglia should have attended the IME, and dismissed his complaint. Bottiglia applied for a judicial review of that decision, claiming the board had no right to require him to attend an IME.

The court found that employers can always contract with employees to require an IME. That contract could even take the form of a policy, if properly applied and implemented. But Bottiglia and the board had no such contract.

The court considered it reasonable for the tribunal to question whether Dr. Levine’s return-to-work plan was premature or appropriate, given Bottiglia’s job. It appeared that Dr. Levine might have had insufficient knowledge of the job and of the workplace to properly opine. Finally, there were good reasons to be suspicious of Bottiglia’s sudden ability to return to work just as his paid leave was expiring. The court concluded that the tribunal’s decision that the board could require an IME to assess how best to accommodate Bottiglia was reasonable. The court made clear that when an employer has a good faith reason to question the information provided by an employee’s doctor and cannot reasonably obtain the information it requires from that doctor, it can generally request an IME.

The court noted that, when requesting an IME, the employee’s privacy rights must be respected and the employer should only provide the examiner with the information necessary to determine what accommodation the employee requires. The employer also must not impair the objectivity of the examiner by attempting to bias the doctor in its favour. If it does so, the employee is justified in refusing to attend.

This is an important case for employers at a time when disability leaves, are at record highs.