By Howard Levitt and Hani Shamsi
Refusing to cooperate in the accommodation process is a terminable offence
We are frequently asked about an employer’s duty to accommodate employees with disabilities. Legally, employers must reasonably accommodate an employee’s physical or mental disability, as long as the cost and requirement to do it is within the employer’s means. But any workplace accommodation is a two-way street, requiring both parties to cooperate to fulfill their obligations. So what happens when an employee refuses to cooperate?
Refusing to cooperate in the accommodation process is a terminable offence. An adjudicator appointed by the Ministry of Labour recently upheld an employee’s termination with just cause, following the employee’s repeated refusals to cooperate with the employer’s efforts to accommodate his disability.
The individual most recently worked as a warehouse assistant for telecommunication company. He joined the company in 2007 and in 2013 injured his right ankle while working as a cable technician. Following a workers compensation claim, he returned to work within one month. He was later involved in a motor vehicle accident, re-injured his right ankle and was accommodated with work in the company’s warehouse. He completed a Functional Abilities Evaluation (FAE), indicating that his physical restrictions required he take microbreaks during work and was placed on modified duties accordingly.
He was then asked to attend an Independent Medical Exam (IME) to understand his current physical restrictions and how to continue accommodating him. The employee refused to participate in the IME, stating that the company had sufficient medical information. Following the company’s numerous requests and the employee’s repeated refusals to comply, the employee was terminated with just cause.
He then filed a complaint under the Canada Labour Code for unjust dismissal, a remedy for employees dismissed or constructively dismissed by federally regulated employers. An adjudicator determined that the employee unreasonably refused to participate in the IME. The adjudicator noted the employee’s “uncompromising position, demanding, and strident approach to the accommodation of his disability” which limited the employer’s ability to continue accommodating him.
Employees bear the burden of proving discrimination based on accommodation under the Canadian Human Rights Act (CHRA). The adjudicator determined that the individual failed to show that he experienced discrimination under the CHRA because he repeatedly refused to cooperate with the company’s efforts to reasonably accommodate him for his disability. The man’s continued refusal to cooperate with reasonable medical information requests and unnecessary confrontational correspondence to his employer irreparably broke down their relationship, leading to termination with justified cause.
In deciding this matter, the adjudicator noted some general propositions regarding disabilities and workplace accommodation:
- Employees bear the burden of proving discrimination on a balance of probabilities standard.
- The accommodation process requires all parties (employer, employee, unions (if applicable)) to cooperate.
- The employer has a legal obligation to ensure that its employee can safely perform their assigned tasks. Medical information becomes important to understand an employee’s restrictions and limitations in performing their duties so the employer can fulfil their obligation. Therefor the employee has to provide it as required to substantiate an accommodation.
- Medical information is generally confidential but may need to be shared with an employer within reason to ensure the employee receives the appropriate accommodation. Ongoing accommodation, such as in this employee’s case, requires ongoing medical disclosure and a current IME for the employer’s compliance with their accommodation obligations, and for the employee to be accommodated.
I will add that the line between human rights violations and cause for discharge can be thin and great analytic care should be taken in each case with qualified counsel
Accommodation is a cooperative exercise. If you are an employer and your employee requires accommodation but refuses to cooperate in medical disclosure, you may have grounds to terminate their employment for cause rather than it being a human rights issue. Consult employment counsel before deciding to terminate an employee, especially if they refuse to participate in the accommodation process.