Canadian Employment Law Today

Canadian HR Reporter, 2021 4 Employer terminated worker at end of medical leave without additional medical information, but told worker it wasn't expecting her back yet Alberta preschool taught lesson on accommodation THE OWNERS of an Alberta preschool must pay a former employee $20,000 for discrim- ination and a failure to accommodate her mental disability after they fired her while on medical leave, the Alberta Human Rights Tribunal has found. The worker was a development assistant for Time to Play (TTP), a preschool in Al - berta, working seasonally from Septem- ber to June. She started with TTP in 2011 and continued to work from September through June over the following three years and her employment contract included a provision that required telephone commu - nication in case of an absence due to ill- ness. The worker suffered from generalized anxiety disorder for which she took daily medication. On Oct. 31, 2014, the worker got into an argument with a colleague about watching one of her children. As a result, she left work early feeling upset about the altercation. TTP arranged a Nov. 3 meeting with her and the colleague to discuss the matter. At the meeting, TTP's office manager and co-owners told the worker that she was in need of help, as the co-owner had a background in psychology and the office manager in social work. The co-owner was aware of the worker's anxiety because they had discussed it at work previously. The co- owner offered to help the worker move to Ontario to get help and asked her to think about it and the following day, the co-own - er emailed the worker about a 30-day med- ical leave with two weeks' severance plus assistance to relocate. If the worker didn't accept the offer, she was expected to return to work immediately. Two days later, the co-owner emailed the worker reiterating the options of going to Ontario on a medical leave or returning to work. The other co-owner followed this up with an email saying there would be no employment insurance and offering to drive her to Ontario if she chose that option. On Nov. 6, the worker provided a doctor's cer - tificate stating that she was unable to work due to illness until Dec. 6. Medical leave extended The worker was scheduled to take a first aid course on Dec. 6, which was a Saturday and the last day of medical leave according to the doctor's note. TTP sent two email reminders to the worker and the officer manager called her to request confirmation, but the worker sent a second doctor's certificate on Nov. 25 stating that she was unable to work due to illness and would be assessed on Dec. 16. The day after TTP received the second certificate, TTP requested confirmation that the worker was seeing a doctor for her ill - ness and a statement from the doctor on what the illness was. The email concluded with "see you in the New Year." The worker responded by saying that she wasn't re- quired to divulge personal medical infor- mation and confirmed that she was seeing her doctor. She also said that she wouldn't be attending the first aid training on Dec. 6. One of TTP's co-owners followed up with an email stating that the worker's absence caused a "good deal of stress and disruption on our day to day operations" but coverage for her workload had been arranged until the end of the school term on Dec. 19 with the hope that the worker would be able to return for the start of the next term on Jan. 5. TTP called the worker on Dec. 16 — the last day of her medical leave under the last doctor's certificate — to ask about her sta - tus, but the worker didn't answer. The next day TTP called again to inquire about the worker's status and left a voicemail mes- sage, but again didn't hear back from her. Three days later, on Dec. 20, TTP sent the worker a termination letter saying that it expected that she would have either re - turned to work on Dec. 17 or notified it of another medical leave extension. The let- ter also rescinded the offer of two weeks' severance and stated that "since neither of those things happened we must conclude you have abandoned your employment contract with TTP." The same day as the termination letter, TTP received a doctor's certificate extending the worker's leave until Dec. 31. TTP made additional attempts to contact the worker but these were unsuccessful. On Jan. 2, 2015, the worker filed a hu - man rights complaint alleging that TTP failed to accommodate her mental disabil- ity when it terminated her employment when it had communicated to her that she wasn't expected back until the new year. She also claimed that TTP had a duty to in- quire into her accommodation needs. The tribunal found that the worker was subjected to prima facie discrimination, as her anxiety was a mental disability, her ter- mination was an adverse impact, and her disability was a factor in her termination since TTP knew that she needed help and her absence was related to an illness for which she was seeing a doctor. The tribunal acknowledged that TTP ac - commodated the worker's medical leave as requested by the first two doctor's certifi- cates, from early November 2014 until Dec. 16. However, it stopped accommodating her on Dec. 17 when it had no further in- formation from the worker and she didn't return to work on that day, the tribunal said. The tribunal found that there was still a duty to accommodate the worker after Dec. 16 even though it had no definite informa - tion until a few days later. The most recent medical information that TTP had at that point was that the worker would be reas- sessed on Dec. 16 — creating a possibility that the medical leave would be extended. Regardless, the last date of a medical certifi- CASE IN POINT: ACCOMMODATION When an employee is on medical leave, the employer has a right to updates on the employee's status and, if possible, an expected return-to- work date. This information helps the employer plan for the effects of the employee's absence and any potential accommodation. However, when the information indicates the possibility of a leave extension, the employer shouldn't be too hasty to take action when the expected end of the leave comes with no new information. BACKGROUND BY JEFFREY R. SMITH The worker's anxiety was a mental disability, her termination was an adverse impact, and her disability was a factor in her termination since the employer knew that her absence was related to an illness.

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