Dueling with Doctors: Handling Questionable Medical Leaves

Dueling with Doctors: Handling Questionable

Medical Leaves in the Workplace

July 10, 2013

Presented by: Matthew Vella, LL.B., LL.M.

Vella LPC, Labour & Employment Lawyers

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TOPICS

• What is a Code Protected Disability?

Physical Disability

Mental Disability

• Managing a questionable claim

Questionable circumstances

Poor medical evidence

The duty to accommodate

The doctor’s right to dictate outcomes

Independent Medical Exams (IMEs)

• Frustration of Contract – Ending The Relationship


THE HUMAN RIGHTS CODE

• Section 10 sets out the definitions

• “disability” means,

• (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

• (b) a condition of mental impairment or a developmental disability,


THE HUMAN RIGHTS CODE

• Note the breadth of these definitions. “Any degree of physical infirmary” was once held by a labour arbitrator to include a broken wrist.

• We have since seen a shift in the other direction, with such de minimus conditions being taken off the list of Code protected disabilities in favour of more serious conditions. Some Human Rights adjudicators have stated that allowing for such minor conditions trivializes the Code’s quasi-constitutional nature. But be aware, the definition is still the definition. There is closed list of what is or is not a disability.

• The definition of Mental disability is very unhelpful, “a condition of mental impairment” could technically include a hangover, so we need to seek other sources for the true definition. Case law is helpful but is always evolving.


MENTAL DISABILITY

• The Canadian Human Rights Commission provides

some guidance on defining mental disability:

Alterations in thinking, mood or behavior – or some

combination thereof – associated with significant

distress and impaired functioning.


MENTAL DISABILITY

• This definition is helpful in that it provides a requirement

that there be “significant distress or impaired

functioning”.

• Some examples of mental disabilities:

Stress/anxiety disorder (if it reaches a certain level)

Bi-polar disorder

Depression

Post traumatic stress disorder

**NOTE: This is an open list. Any mental disorder can

be Code protected.


MENTAL DISABILITY

• Some problematic examples:

I hate my boss!! (don’t we all?)

I can’t keep up with my workload

I am being micro-managed and it is causing me anxiety

The company is terrible, I can’t make sales because the

product is no good, this is causing me stress and anxiety

These become serious issues when a doctor provides

medical notes substantiating that the issues is a “disability”.


Registrant Question

“One particular issue we have been struggling with is

doctor's writing medical notes (or assessments) indicating

that patients are totally disabled by mental illness, and

need to be off indefinitely. How do we better manage these

claims?”

- Melanie from Cooksville, ON -

8


FACT SCENARIO

• Amy is an outside sales rep. She spends a good deal of time on the

road. Her manager asks her to start regularly reporting what she is

doing with her time. Her reports are vague and not overly

productive. She receives a negative annual performance review,

blows up on her manager in the meeting and the next week she:

Provides a medical note stating “Amy cannot attend work for 8

weeks due to stress” AND

Submits a lengthy workplace harassment complaint against her

manager which, in reality, does not allege a single bona fide

ground of harassment but simply complains about the company

and lack of sales support as well as micro-management issues


THE CHICKEN AND THE EGG

• There is a tendency to think:

“Amy is faking a medical issue because she got in trouble at work and doesn’t want to get fired”

• That may well be true, but beware the chicken & the egg problem.

• Perhaps Amy is faking a stress leave to avoid workplace discipline for sleeping in her car all day rather than meeting clients. OR

• Perhaps Amy has been sleeping in her car all day and underperforming at work because she has a mental illness which she did not inform the employer of until she was disciplined.


A FURTHER TWIST

• Upon the employer’s request for further medical evidence Amy’s doctor provides a letter which says that the sole cause of Amy’s anxiety disorder is workplace harassment. The doctor mandates, in writing, that Amy be provided a new manager as an accommodation.

• PROBLEM: We read the workplace harassment complaint. In 10 pages (typed), there was not one real allegation of harassment.

• Issues:

Does Amy have a medical disability? Is it a mental condition to hate your boss?

Can the doctor dictate the accommodation for Amy?

What evidence is the employer entitled to, and what are its legal obligations?


IS THIS A DISABILITY?

• Look back to the chicken & the egg problem. In a way, this

issue is a red herring, but alternatively it can cause a lot of

problems:

• Whether or not Amy has a disability no longer matters. She

has a doctor’s letter saying she has one, and therefore the

employer must treat her as if she does, at least until it has

better evidence and more information.

• If the employer acts from a preconceived notion that Amy is

faking the illness, the employer will tend to act too

aggressively. This can cause significant exposure to liability.

• The employer must treat this as a bona fide medical leave for

the time being.


IS THIS A DISABILITY?

• Further, one must consider the fact that an employee

who throws a temper tantrum in a meeting and who then

files a lengthy harassment complaint in the nature of

Amy’s may well have a mental disability. These are

indicators that Amy has a problem, and rather than

looking at this as “whether Amy’s hatred of her boss

constitutes a medical condition” we should also consider

“whether Amy’s hatred of her boss is the symptom of a

medical condition”.

• The facts from a prominent Supreme Court of Canada

decision are illustrative


Registrant Questions

• “Are there legal consequences to physicians that submit medical

forms or documents, on behalf of their patient, that are untrue?

Especially if the medical leads to approved paid medical leave from

work, long term disability, or workplace accommodation?” (Andrea

from Prince George, BC)

• “An employee submits a Dr.'s note that says "medical leave for 16

weeks" and no further information provided by the Dr. or employee.

Does the employer have the right to request further information or

call the Dr. to confirm the leave?” (Emily from London, ON)

• “How to demystify medical notes when the Doctor is being very

vague about prognosis.” (Richlyn from Brampton, ON)

14


Hydro-Quebec

• In this case the Supreme Court dealt with an employee who had 960

absences over a 7 year period and who was constantly in conflict

with her co-workers and management. The conflict stemmed from a

bi-polar disorder.

• The complainant’s doctors in Hydro-Quebec insisted that she could

work, if the following conditions were met:

• [the employee can] work in a satisfactory manner provided that it is

possible to eliminate her stressors – both those related to her work

and those arising out of her relationship with her immediate family-

that affect her and make her unable to work.


Hydro-Quebec

• The doctors recommended that:

the employer periodically, on a recurring basis, provide the complainant

with a new work environment, a new immediate supervisor, and new

co-workers, to keep pace with the evolution of the love-hate cycle of

her relationships with supervisors and co-workers

• The court found that this recommended accommodation was not

required of the employer.

• In my opinion, this ridiculous medical opinion shows how far doctors

are willing to go to help their patients without any real grasp on the

reality of a workplace.


DEALING WITH MEDICAL EVIDENCE

• We have all seen the following prescription pad note:

Andrew cannot attend work, 5 weeks, stress/illness

• Does the employer have to accept this? NO

• But beware the common misconceptions that may lead an employer

down the wrong path:

The employee is faking it because he or she got in trouble at

work

The employee has personal issues and that’s not the company’s

problem

The letter should be ignored and just leave the employee alone

for 5 weeks



• Each of the above are common first impressions.

• Each should be ignored, even if they are factually sound.

• The employer must begin the process of accommodation

whether or not it feels that the employee is faking the

claim. An employee with medical evidence should be

treated as requiring accommodation from the outset

unless the medical evidence is clearly and unequivocally

fake, false, or incorrect.


THE DTA

• The employer has a legal duty to accommodate it’s

employees. That duty has two aspects. The first aspect

is often overlooked.

The substantive duty to accommodate

The procedural duty to accommodate



• The procedural duty to accommodate requires that the employer :

Obtain all relevant information about the employee’s disability

This can include prognosis for recovery and ability to perform job

duties and capabilities for alternate work

Seriously consider how the employee can be accommodated

and what steps can be taken to get the employee back to work

This legal obligations requires that the employer obtain better

medical evidence. Acting based on only the hand scribbled note is

not recommended. The medical note does not allow the employer

to properly assess return to work options or accommodations.


SEEKING BETTER MEDICALS AS PART OF

THE DUTY TO ACCOMMODATE

• In a case like this, the employer should:

Provide the employee with a written request for better medical

evidence, including provision of a Functional Abilities Form (FAF)

for his doctor to fill out which sets out his restrictions, treatment

and prognosis for recovery. The FAF should include a release

allowing the employer to deal directly with the doctor with

respect to the matter on a going forward basis.

The FAF should be accompanied by a written job description

setting out the employee’s daily tasks so that the doctor can

provide insight into what he can and cannot do.

The FAF and letter to the doctor should also include a request

for a schedule of the employee’s follow up visits and should

request updated medicals.


STATISTICS

• Statistics show that once an employee has been off work

for 12 weeks the employee is 80% less likely to return to

work than an employee who is off for less time. Every

week that the employee is away, the less likely he or she

will ever return.

• It is imperative that the employer begin managing this

issue right away.

• Many employers take the first 5 week absence note and

follow a “do nothing approach”. They will then get

another 5 week absence note in 5 weeks, and are by

then behind the clock on dealing with this.


ACCOMMODATION IS A TWO WAY STREET

• Just as the employer has a legal obligation to make an informed

decision, the employee has a correlative obligation to provide

reasonable medical evidence and to inform the employer of his or

her circumstances. “accommodation is a two way street” and the

Human Rights Tribunal and Ministry of Labour are willing to enforce

that duty against the employee if the case is managed properly.

• The employer should, in the request for better medicals, note the

employee’s duty and state that due to the employer’s legal

obligations to make informed decisions, the employer requires the

FAF and further medical evidence.


Registrant Question

“Please discuss the role of independent medical

assessment and duty to accommodate.”

- Sue from Halifax, NS -

24


INDEPENDENT MEDICAL EXAMS

• You DO NOT have an unqualified right to make an employee undergo an IME. There are serious privacy issues at play. Generally speaking, an employer may not force an employee to undergo an IME unless:

The employer provides its is own self insured Short Term Disability insurance which the employee is collecting from. The employer therefore steps into the shoes of an insurer and may have more rights to seek an IME; OR

The contract of employment specifically and unequivocally allows for an IME if an absence exceeds a certain length of time; OR

A collective agreement allows for an IME

If none of these factors exist, you can request an IME but the employee is likely within his or her rights to refuse it. Also note that simple workplace policies allowing for an IME may not be effective (unless there is also a self insured STD plan in place)


THE SUBSTANTIVE DUTY TO ACCOMMODATE

• The substantive duty to accommodate dictates that once

the employer has turned its mind to the situation, it

provide the employee with the most suitable

accommodation possible that will avoid “undue hardship”

to the employer.

• Note the word “undue”, this means that employers are

expected to suffer some hardship. Inconvenience will

get you nowhere. There must be verifiable hardship that

is “undue” before the DTA is met and the employer’s

onus discharged.


Registrant Questions

• “How do you challenge a doctor's note which you think is

too aggressive on specifying time off for an employee?”

(Norm from Edmonton, AB)

• “When do you think it's appropriate to request an

Independent Medical Opinion and how to handle it with

the employee.” (Margarita from Mississauga, ON)

27


The DUTY TO ACCOMMODATE

• In Hydro-Quebec the SCC put it well:

In a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied [its legal obligation]. The duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employee’s fundamental rights and the rule that employees must do their work. The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future


THE DOCTOR’S ORDERS

• A prevailing (and quickly growing) problem is that doctors are trying to usurp the employer’s obligations and pre-empt the accommodation process by dictating results.

Doctors are trying to help their patients by “prescribing” whatever the patient wants. Medical notes state that the employee must report to a new supervisor or that the employee must work in a certain location or that the employee must be allowed to come to work at a certain time of day. In my opinion these are factual conclusions about accommodations, they are not medical opinions within the scope of the doctor’s mandate.

Doctors are going well above their expertise. Can a GP certify a 6 months absence for “severe stress disorder” without referring his patient to a therapist?

Doctors are taking their patient’s subjective complaints at face value without being able to properly assess diagnosis



• You do not have to take the doctor’s word as gospel. It is the employer’s obligation, and the employer’s right, to come up with a proper accommodation. The doctor’s job is to provide the functional limitations of his or her patient, not to say that the patient must receive a specific accommodation.

• Seek better evidence, seek functional restrictions, and base your accommodation decisions on those medically relevant restrictions, not on non-medical conclusions made by the doctor.

• Seek to ensure that the employee is receiving proper care and treatment. There is some obligation on the employee to try and get better

• ALWAYS watch your language. Have counsel draft letters on these matters. These letters may end up before a human rights adjudicator, your tone and the way you make these requests is very important



• If you continue to receive vague and useless medical

notes, ask a series of directed questions:

Can Amy work restricted hours?

What are Amy’s abilities with respect to memory,

dictation and ability to work with others?

Can Amy handle normal workplace stress if she does

not have to deal with clients directly?

The more information the better


DUELING WITH DOCTORS

• In some circumstances a lack of proper medical evidence can

be the cause for serious concern and can lead to discipline or

dismissal of the employee but that is a very serious matter

and should only be done in direct consultation with legal

counsel who are experienced in this field

• This can become a chess match between the doctor and the

lawyer(s). Every move is important. You must exercise

patience and watch your candor.

• Be mindful of the fact that there is such a thing as

unreasonable requests or unreasonable amount of requests.

The employee cannot be harassed if he is cooperating


Registrant Question

“How long can an employee be on medical leave for - 2

months, 6 months? Is there a cap that we can put in our

company policy regarding this?”

- Juno from Toronto, ON -

33


FRUSTRATION OF CONTRACT

• Look back to the quotation from Hydro-Quebec. It deals directly with

frustration of contract. But it is also just a broad statement and does

not fully set out the law.

• Frustration of contract for a medical disability can be extremely easy

to prove in some cases and extremely hard in others.

• The employee must be unable to perform the essential duties of his

job or any reasonably available job, with or without accommodation

up to the point of undue hardship AND

• The employee must have no reasonable prognosis for recovery


FRUSTRATION OF CONTRACT

• This last aspect is problematic because doctors will frequently certify

a return to work in 6 weeks but will do so every 6 weeks, thereby

always providing a prognosis for recovery.

• Several court cases state that the general time an employee must

be off work is 2 years

• There may be other circumstances that vitiate a frustration of

contract argument as well. For example, the receipt of LTD benefits

may stop an employer from alleging frustration

• Note that an employee whose contract of employment is frustrated

is still entitled to ESA 2000 payouts pursuant to the Court’s decision

in


IMPORTANT NOTE

• These matters are extremely complicated and can lead

to significant liability. Each mental disability case is as

unique as the person suffering the illness and the

company dealing with it. Legal advice should be sought

for any such case.

• This presentation touches on many much larger topics.

For a more detailed paper on this subject, or if you have

any questions regarding the presentation, please email

me at [email protected]

mailto:[email protected]


QUESTIONS?


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Health & Medicine

Dueling with Doctors: Handling Questionable Medical Leaves