How employers can navigate the legal minefield of accommodation

Canadian employers are drowning in a rising tide of vague, two-line doctor’s notes that say nothing and demand everything. Far too many physicians will scribble whatever their patient requests, leaving employers to navigate the legal minefield of accommodation with no real information.

This trend doesn’t just trivialize the struggles of employees with legitimate medical needs. It forces employers into a legal obstacle course, where a single misstep in the accommodation process can lead to costly human rights complaints or wrongful dismissal claims.

But employers forget a crucial point: employees are not entitled to perfect accommodation or to the accommodation they prefer. The law requires only reasonable accommodation up to the point of undue hardship to the employer but based on actual limitations, not on a doctor’s rubber stamp and certainly not to the employee’s idealized vision of a redesigned job.

Accommodation is not a one-sided exercise. Employees have their own legal obligations. They must cooperate in the process and provide a reasonable amount of information about their disability-related needs. A cryptic doctor’s note saying “cannot work” doesn’t cut it.

If the information provided is too vague for an employer to understand what limitations actually exist, the employer is not expected to guess. They are entitled — and in many cases required — to ask for additional information to understand what duties the employee can and cannot perform. It is called asking the doctor for the employee’s “functionalities” and “limitations.”

That request, however, must be handled with care. Employers must explain why the current information is insufficient and must avoid turning the process into a confrontation. The moment an employer appears accusatory or gives the impression they simply do not believe the employee, they wander into legal quicksand. Several employers have already learned this lesson the expensive way.

One of the most effective tools is the Functional Abilities Form (FAF) — a structured document completed by the employee’s treating physician. It focuses on functional limitations, not diagnoses, and sets out in concrete terms what the employee can and cannot safely do.

The FAF is far more valuable than a general practitioner’s “note-for-hire.” It allows employers to craft return-to-work plans based on evidence rather than conjecture. And if an employee refuses to provide a completed FAF, tribunals and courts have in many cases found that the employee has breached their own duty to cooperate — sometimes with serious consequences for their legal claims.

Indeed, courts have upheld dismissals for just cause when an employee’s refusal to participate meaningfully in the accommodation process led to a breakdown in the employment relationship. Accommodation is a two-way street; an employee who blocks the route cannot later complain they never reached their destination.

In rare circumstances, employers may also request an Independent Medical Examination (IME) — a second opinion from a physician chosen by the employer. But IMEs lie at the far end of the accommodation spectrum. Request one too soon, too often or too aggressively, and employers risk substantial damage awards.