Canadian Employment Law Today

November 3, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases agreed to allow Michaud to work from home for two days per week with a modified work week. Michaud would work from 9:40 a.m. to 6 p.m. each day, with a flex day every other Friday. Michaud worked the modified schedule, but soon the ministry began to have concerns about her work performance. At her annual per - formance review in May 2017, her supervisor pointed out that she had missed two meetings in early May and there were inconsistencies in her work. The supervisor suggested that Mi - chaud should have been off work on the min- istry's short-term illness and injury plan (STIIP) — which could be applied to medical leaves of up to six calendar months — at the time she missed the meetings. On the performance re - view, the supervisor wrote that he wasn't sure if the cause of the problem was "performance related, or whether it is caused by health issues." Michaud disagreed that there were problems with her work, but she acknowledged that her focus and productivity were affected by her dis - ability. That same month, Michaud obtained two more medical certificates stating that the modi- fied schedule hadn't resolved her issues. Her physician reiterated that her symptoms were worse in the morning and better in the evening, recommending that she start work at 11 a.m. and work from home four days per week. The medical certificates also recommended that she be able to stretch and move constantly and an occupational therapist should be included in creating a performance plan. Accommodation request involved working late Michaud's supervisor suggested that she go on long-term disability (LTD) leave or STIIP but otherwise needed to perform her duties. The ministry had concerns about an employee working from home for most of the week out - side of operational hours and requested ad- ditional information about Michaud's restric- tions and limitations to determine if it could accommodate her in the office. A doctor performed a fitness-for-work assess- ment on July 27. The assessing doctor — who had not heard of Michaud's condition and had to look it up — said that she could not recom- mend accommodation because the symptoms for the condition were "self-reported" and re- ferred Michaud for an independent neuropsy- chological assessment. Michaud said she would only agree to the independent assessment if temporary accom- modation began immediately, the exam times would be either adjusted to assess her after- noon performance or not be used in place of her medical certificates, and if accommodation wasn't recommended she would file a grievance for privacy breaches related to the assessment. The ministry didn't agree to the conditions and concluded that Michaud declined to par - ticipate in the independent assessment. It withdrew the offer of specific accommodation and offered accommodation in line with the branch's operations — two days working from home and ending at 6 p.m. It also noted that it would seek further information to assess ac - commodation requirements. Michaud submitted a new medical certificate on Sept. 13 reiterating her specific accommoda- tions and recommending two weeks off work. Further exchanges ensued, with the ministry understanding that Michaud could be cleared to work full-time with no modifications on Oct. 2 by taking sick days when needed. Michaud said she was only cleared to return with the specific ac - commodations, but the ministry again said she could only work modified hours within the hours of operation — 11 a.m. to 6 p.m., not 7 p.m. An independent medical examination (IME) was scheduled and then cancelled when Mi - chaud felt that it was an unnecessary invasion of her privacy. Ultimately, the ministry determined that it needed "a current objective medical as- sessment regarding her medical limitations and restrictions" but Michaud was refusing to par- ticipate in the accommodation process. It pro- vided her with an LTD benefits application and ended her STIIP benefits on Dec. 27. In July 2018, the ministry advised Michaud that it was still open to her returning with re- duced hours and workload pending further medical information. Michaud responded with conditions that she return to full-time employ- ment with accommodation, get transferred or promoted to a location that allowed her to work from home five days a week, and get a different supervisor. At that point, she would be willing to consider an independent assessment. Michaud filed a human rights complaint alleging discrimination on the basis of physi - cal disability. The ministry applied to have her complaint dismissed on the basis that it had no reasonable prospect of success. The tribunal noted that after receiving the first medical certificate in August 2016, the ministry proposed the modified schedule with Michaud starting and finishing later in the day and working from home when the opportunity arose. This fulfilled its duty to accommodate at that time and the May 2017 performance review reflected legitimate concerns with no discipline associated with them, said the tribunal. Further duty to accommodate The tribunal found that the subsequent medical certificates triggered an additional duty to ac - commodate and Michaud was off work for an extended period due to her symptoms, result- ing in "disability-related barriers in her employ- ment." While the ministry argued that Michaud didn't co-operate in the accommodation process because she didn't provide additional medical information that it requested, the tribunal found that the ministry initially tried to pursue the in - formation through an IME rather than through her own doctor, which was strange because there was no evidence that the specific accommoda- tion outlined in the medical certificates would cause undue hardship, said the tribunal. The tribunal also found that the medical cer- tificates indicated that Michaud could work with modifications, so it wasn't reasonable to prevent her from returning to work at least temporarily while full accommodations were negotiated. The tribunal determined that although Mi - chaud put up some obstacles of her own, the ministry did not take all reasonable steps to try to reasonably accommodate Michaud from May 2017 onwards. As a result, the ministry did not establish that Michaud's human rights complaint could not succeed. The tribunal dis - missed the ministry's application to dismiss and allowed it to proceed to a hearing. For more information, see: • Michaud v. BC Government and Service Em- ployees' Union and another, 2021 BCHRT 115 (B.C. Human Rights Trib.). « from ACCOMMODATION on page 1 Medical certificates indicated that worker could perform modified work Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as liability in the hybrid workplace, the legal liability of poaching workers, and mandatory retirement for certain workers. You can view the blog at www.employmentlawtoday.com.

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