Case Studies
Employers (including employer representatives such as directors, supervisors, and human resources officials), employees, and unions share in the responsibility to find solutions for managing the return to work. In this section, we provide hypothetical case studies demonstrating these roles and responsibilities. Following each case study are general guidelines for how you might consider approaching the situation if you were the employer or supervisor.
| Case Study #1 Employee submits insufficient medical information, refuses- to cooperate An employee approaches his supervisor and says that his doctor has advised him to take eight weeks of sick leave to recover from "stress and burnout." The employee hands his supervisor a doctor's note to confirm this advice, and explains that he needs to be away from work starting right away. The supervisor notes to himself that this employee has had a troubled history with the organization. The employee has been disciplined on several occasions and has in turn filed a number of grievances against the supervisor and various co-workers. He has made no secret that he would prefer to transfer from his current night shift to a day shift or to a different location, but he doesn't have the seniority to successfully apply for any of these positions. With this new request for leave, the supervisor is concerned that the employee and the doctor randomly requested a lengthy absence. Nonetheless, since the employee presented a valid doctor's note, the supervisor grants the employee's request. The supervisor schedules the start and end dates of the sick leave. A few days before he is supposed to return to work, the employee delivers another doctor's note saying he should be transferred to the day shift immediately. |
Gather details and assess the situation
Ideally, you would have maintained contact with the employee during their absence and determined that accommodation measures may be necessary prior to their return to work.
In this situation, the employee didn't give you adequate notice prior to their preferred return-
to-work date. You should tell them you need more time to consider their request. An employer is entitled to ask for more time to examine and implement an accommodation request when there isn't enough information to make an informed decision.
The doctor's note presented by the employee states that they should be switched to a day shift immediately. However, the note does not provide sufficient information on how the employee's condition will affect their ability to perform their job, nor does it indicate if this is a permanent or temporary situation. Finally, the note does not indicate what alternative work duties the employee would be able to do.
In this case, you should ask the employee if they are able and willing to return to their regular night shift until a decision can be made about the requested shift change. If the employee is unable to do this, look at whether the employee can be temporarily moved to the day shift. If that is not possible, it may be necessary for the employee to remain on leave. You should keep a record of these proceedings on file.
Consult with health and medical specialists
Since there aren't enough details to make an informed decision, you would have to tell the employee that you need the information clarified by their physician and/or an independent medical assessor.
At this point, you should describe to the employee the organization's internal policies for collecting and protecting the privacy of personal information. Ask for the employee's consent to contact the doctor that supplied the note.
WHAT IF … the employee refuses to allow you to contact their doctor, or refuses to participate in an independent medical assessment?
An employee has a responsibility to fully cooperate in the effort to find options
for reasonable accommodation. This involves permitting a supervisor to gather the appropriate health and medical information they need to make an informed decision, provided that privacy and human rights are respected in the process.
If an employee refuses to help you obtain the health information you need, you should advise them that you cannot continue with the accommodation process--their request will be delayed until such information can be gathered.
Remember that an employer cannot discipline an employee for refusing to undergo a medical examination by a doctor chosen by the employer, nor can the employer discipline an employee for refusing to disclose confidential medical information. It may be helpful if the employer agrees to consult with a physician of the employee's choosing.
In general, you should confirm whether or not the employee can perform their night shift duties. If they cannot, determine whether they could do the job if some of the night shift duties were modified. Finally, if the employee is unable to do their job with modified duties, seek information on what types of tasks the employee would be able to accomplish.
Consult with union representatives
In this example, the employee is requesting accommodation that will have an impact on co-workers' rights and entitlements under collective agreements. Consequently, you would have to consult with a union representative to discuss options for accommodation. For its part, the union is obligated to assist you in exploring these options. Please refer to Part 2 for more details.
If the medical information you collect verifies that the employee should be switched to a day shift, you may need to reassign or reorganize duties that are currently held by the employee's co-workers. You should consult the union about how this will affect seniority rights or collective agreements. Ask the union to suggest potential solutions that will minimize disruption to co-workers.
Review the accommodation options with the employee and other stakeholders
Meet with the employee to review all of the accommodation options that are suitable for the situation. If the medical information supports the employee's need to move to a day shift, then recommend the scheduling option that is least likely to interfere with co-workers' rights under collective agreements.
If the medical information does not support the employee's request, then you are not required to transfer them to a day shift. However, some changes to their current job duties may still be necessary (if indicated by the medical information collected). You may need to consult with others in your organization to decide on what these modifications would be. You may also need to provide training related to the job's new or modified duties.
WHAT IF … the employee refuses your recommended accommodation options?
The employee is not entitled to a perfect solution, or one that they choose for themselves. They are entitled to accommodation that meets their medically verified needs. If you have offered reasonable accommodation (to the point of undue hardship), then you have satisfied your duty to accommodate. If the employee refuses your proposed accommodation, they should explain why they have rejected the offer.
Implement the accommodation plan
Following a review of the options with the employee, you should implement the agreed-upon accommodation measures so that the employee can return to work as quickly as possible (if they hadn't returned to the job while the request was being considered). Ensure that you monitor the employee's progress to make certain that the accommodation is effective. If the accommodation doesn't address the verified needs of the employee, you may have to make further adjustments. If the employee remains dissatisfied, advise them of their rights to appeal within the organization and/or their right to file a human rights complaint.
Case Study #2 A case of undue hardship? Mr. B is a 56-year-old man employed as a deck hand on board a ferry. He has permanently injured his shoulder and back, and has been off work for over a year. He has indicated that he is now fit to return to work. His employer arranges for a fitness assessment to ensure that Mr. B can safely complete his job duties. The assessment shows that he must avoid repetitive lifting, carrying, and twisting, and that he should no longer work on board a ship. As for education and other skills, Mr. B has completed grade 9 and has very limited reading and writing abilities. He is considered a poor candidate for formal upgrading. He has indicated that he is unwilling to relocate to a position outside of his province. Mr. B's employer believes that the company is unlikely to find a job that can take advantage of his skills given his medical limitations and geographic preferences. The employer has a limited number of light duty jobs and those positions are in high demand since there has been an increase in the number of employees with disabilities. |
In this case, several accommodation procedures have already been completed. You would have already gathered information to assess the situation; consulted with health and medical specialists; and discussed options with the union.
Consider all options for accommodation
In order to satisfy the duty to accommodate, an employer must demonstrate that they have explored all possible accommodation options, up to the point of undue hardship.
Mr. B has limited skills and refuses to relocate. This situation may make it very difficult to accommodate him. In spite of Mr. B's preferences, the employer should consider positions in other geographic areas and present them to him. An alternative may be to retrain Mr. B for another position within the organization; however, an employer is not required to create an unproductive position in order to accommodate an employee.
Select the most appropriate accommodation option
After reviewing all potential solutions, the employer should look for a feasible option that accommodates Mr. B's physical limitations and is least likely to interfere with co-workers' rights under collective agreements.
If there are no options for alternative employment, the employer should think carefully about how they would prove that this is a case of undue hardship before considering terminating Mr. B's employment.
Is this a case of undue hardship?
The employer should consider the following questions before concluding that accommodating Mr. B would amount to an undue hardship:
- Does Mr. B's condition present a health risk to himself?
- Does Mr. B's condition present a health risk to others?
- Can any modifications be made to Mr. B's job that will allow him to perform the job?
- If Mr. B cannot be accommodated in his current position, what alternative positions have been considered?
- Can Mr. B be moved into a position with a non-bargaining unit or to another bargaining unit?
- What would be the costs of implementing Mr. B's accommodation? The costs should be quantified and not speculative.
- Are there reasons why any viable alternatives were not implemented?
- What discussions have taken place between the employer, the employee, and the union about the situation?
- Have the employer, the employee, and the union cooperated in attempting to find a solution?
| Case Study #3 Employee has returned to work with modified duties but still has not resumed her regular job Ms. T, a ramp agent at an airport, was off work for four weeks following knee surgery. As instructed by her doctor, she has returned to work on a gradual basis, first working two days per week, then three , then four, and then five days per week. She has also not performed the physically demanding tasks that are part of her job requirements. These tasks were assigned to her co-workers, and she has taken on some of their less strenuous duties. It has been six months and the original medical assessment done by her doctor indicated that Ms. T should be working without restriction by now. However, she has just presented a doctor's note stating that she should continue with light duties until further notice. Her supervisor believes that some of her co-workers resent having to shoulder the increased workload and worries that this situation might lead to workplace injuries. |
Having received the note from Ms. T's doctor, the supervisor has to review the temporary accommodation arrangements and determine whether to extend them, adjust them, or find a new solution altogether.
Clarify medical information
The first step in this case would be to clarify whether or not Ms. T's condition is permanent or temporary. If temporary, you would need to find out approximately when she would be expected to recover, or when you should re-evaluate the situation. You should ask for Ms. T's consent to ask her doctor for this information.
In addition, you may need to ask Ms. T to participate in an independent assessment of her abilities by an occupational specialist. This would provide a clearer sense of which physical tasks she is to avoid. Perhaps she is now able to complete some of the physically demanding tasks, but unable to complete others.
Consider alternative positions or reassigning job duties
If Ms. T's condition is permanent, you should look at alternative permanent positions within the company that match her skill set. You may need to consult with others in your organization for help on this. If no alternative positions are available, you may need to consider making Ms. T's temporary duties into a permanent job.
While you may have concerns that Ms. T's co-workers resent having to take on some of her more physically demanding tasks, remember that the complaints of co-workers would not be considered sufficient grounds to reject a suitable accommodation option. Nonetheless, when evaluating potential solutions, you should consider factors such as an unfair workload distribution, the need for a major reorganization, and the risk of relapse. These factors may influence your selection.
If you are worried about the safety of Ms. T's co-workers, you may need to reassign certain tasks so that the physically demanding duties are more evenly distributed among the group. If co-workers' safety continues to be a concern and the issue cannot be resolved, you may have to seek guidance from others in your organization on ways to resolve this issue.
If you still cannot come to a clear accommodation solution and are wondering if this is a case of undue hardship, remember that you'd have to provide evidence of this based on the health, safety, and financial factors of the case. Please review the section on undue hardship for more details.
Case Study #4 Employee returns to work in a safety-sensitive position Mr. C, a truck driver, has been off for over a year following a diagnosis of multiple sclerosis. His condition has stabilized and his employer, a trucking company, has been informed that he is now in remission. Mr. C's insurance company has determined that he is fit to return to work and has cut his long-term disability benefits. On Friday, Mr. C informs his supervisor that he is capable of returning to work as of the next Monday. He presents a medical certificate from a specialist in multiple sclerosis indicating that he is fit to work without restriction. The trucking company is concerned that their employee may suffer an attack while on the road, resulting in a catastrophic accident for which they will be held liable. |
In this situation, Mr. C has not given you much notice to prepare for his return to work. Since Mr. C holds a safety-sensitive position, you may need additional time to ensure that he is indeed fit to safely complete the duties in his job description. Keep in mind that an employer has a responsibility to protect the health and safety of everyone in the workplace. An employer also has an obligation to minimize the risks of a health or safety problem recurring.
Ideally, you would have maintained contact with Mr. C while he was on leave to find out approximately when he would be ready to return to work. This way, arrangements could be made in advance.
Learn about Mr. C's condition
Mr. C has told you he has been diagnosed with multiple sclerosis (MS). Since you have this information, you should learn about what MS is, whether there are different types of the disease, and how it could affect Mr. C's ability to work. Don't make assumptions based on what you've heard about the disease or stereotypes associated with it. Look for information through the MS Society Web site or at your local library.
Verify that Mr. C can safely resume work
The next step would be to verify that Mr. C is fit to return to his job. You have a medical certificate but since this is a safety-sensitive position, you need to verify that the certificate was completed based on an understanding of what Mr. C does at work. Do not rely on the decision of Mr. C's insurance company to stop paying benefits as an indication that he can return to work safely. Instead, ask for Mr. C's consent to contact the MS specialist who signed the medical certificate for further details. Make sure that the specialist has read through Mr. C's job description and has confirmed that he can safely perform his duties. Verify if any medication he may be taking would have an impact on his ability to perform his job duties.
Note: If an employer refuses to return an employee to work because of health or safety concerns, they should be able to demonstrate evidence of a verifiable risk. A potential or hypothetical risk is not sufficient grounds to refuse the employee's return to work.
Consider arranging independent medical assessments
If, after contacting the MS specialist, you need further details on Mr. C's ability to work, you should arrange for an independent medical assessment. Also, since Mr. C is in remission and may become ill at some point in the future, you may regularly need to evaluate his ability to work. For example, he may need to participate in annual or semi-annual medical assessments.
Case Study #5 Reasonable accommodation versus perfect accommodation Ms. K works as a payroll clerk for a large government department. In the past few years she has become increasingly sensitive to airborne allergens, especially mould and perfumes. She experiences headaches, fatigue, gastrointestinal distress, and mental confusion when exposed to certain environmental triggers. She has been off work for increasingly lengthy periods of time. While off work, she has been diagnosed with environmental sensitivities. A Health Canada assessment has indicated that she is fit to return to work but recommends that she avoid air conditioning, perfumes/colognes, and mould. The employer has instituted a scent-free policy in the workplace and offered to return Ms. K to her position as a payroll clerk in a closed office with air purifiers. The employer has also offered her the option of tele-working. Ms. K insists that, in order to create a healthy work environment, the employer move her to a space in a newly constructed "green" office building in the city. The government does not own or lease any space in this building, and so the employer is unwilling to accommodate Ms. K in this manner. |
In this case, several accommodation procedures have already been completed. The employer has gathered information to assess the situation; arranged for a Health Canada physician to assess Ms. K's condition; and presented her with two accommodation options.
Ensure that your proposed accommodation options meet Ms. K's medical needs
Ms. K insists that she needs to be moved to an office in a new "green" office building. Before examining the feasibility of this request, you should review the accommodation options that have already been presented--the option of a closed office with air purifiers and the option of tele-working. You need to confirm whether these options would successfully meet Ms. K's medically verified needs according to the Health Canada assessment and any other medical information you have gathered. If you need further information, contact the Health Canada physician who completed the assessment.
You should also examine the option of moving Ms. K to a green office building. Determine the costs and feasibility of this option. Consult with the medical experts to find out if this form of accommodation is absolutely necessary, or if the other options would also meet the employee's requirements.
Since the government does not own or lease any space in the green building, moving Ms. K there could prove difficult. If at least one of the other accommodation options meets Ms. K's needs and is the best option from the employer's perspective, then this option may be selected.
Remember that the employer is responsible for choosing the appropriate accommodation solution, not the employee. While it's important to take the employee's preferences into consideration, the employer has a right to run a productive workplace and to minimize disruption for other parties whenever possible. An employee cannot expect a perfect solution and must accept any arrangement that is reasonable in the circumstances. If you determine that at least one of the proposed options in this case will successfully meet Ms. K's needs, then you will have satisfied your duty to accommodate.
Advise Ms. K of your decision, your reasons, and her right to appeal
If Ms. K remains dissatisfied, advise her of her right to appeal within the organization and/or her right to file a human rights complaint.
Recommended Resources
Following is a list of recommended resources to help you understand issues surrounding human rights in the workplace. You can download these documents by visiting the Web site addresses below. Alternatively, you can request copies by calling the CHRC at 1-888-214-1090.