Canadian HR Reporter

July 10, 2017

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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CANADIAN HR REPORTER July 10, 2017 2 NEWS Recent stories posted on Check the website daily for quick news hits from across Canada and around the world. WEB O N T H E ACROSS CANADA Justice workers vulnerable to trauma from graphic reports and images: Union Many have suffered nightmares, insomnia, emotional and physical difficulties Worker fired for breaching policy, not over drug problem, rules Supreme Court Worker in denial about addiction, should have known not to take drugs before work Rise of the machines: Canadian retailers on 'cusp' of using more robotics Amazon, Walmart raise the stakes Big banks defend records to MPs amid allegations of questionable practices 'We're not perfect; this is a good time for us to stop, pause, reflect' Canada launches fast-track visa program to lure top talent 'Investment will not come to Canada if talent is not there': Immigration minister Liberals looking at ways to change youth employment programs: Labour minister Future changes will likely target indigenous youth, immigrants Ontario employer sentenced to jail; workers owed $140,000 in wages Amounts owing to 43 claimants since 2014 ranged from $700 to $12,000 AROUND THE WORLD For Whole Foods workers, fears of robots, drones, culture clash Employees anticipate worst after Amazon takeover Summer vacation? Lots of Americans say they can't afford it 43 per cent of workers won't be taking time off this summer: Poll Stats show increase in U.S. fatal workplace shootings Identifying people with 'concerning behaviour' key for companies: Experts For some Californians, it's bring- your-dog-to-work day every day Canines can boost productivity, reduce workplace stress: Owners Uber CEO quits Travis Kalanick resigns under mounting pressure from investors over his leadership of ride-sharing company FEATURED VIDEO All of this meant his paid time off work would come to an end in October 2012. While off sick, Bottiglia was treated for anxiety and stress by his family doctor, and then by a psychiatrist, Dr. Levine, who ad- vised the school board in June 2011 that Bottiglia required medi- cal leave until further notice. In February 2012, Bottiglia wrote to the director of education to say "a full recovery will take a prolonged period of time." And a March letter from Levine stated Bottiglia's condition had been relatively treatment-resistant and he required an extended period of time off work. But in August 2012, Bottiglia's lawyer told the OCSB Bottiglia's condition was improving and he could return to modified work sometime in the next two months. But the OCSB felt Levine didn't have an objective understanding of Bottiglia's workplace or his du- ties as a supervisor. It was also concerned Levine's recommenda- tion contradicted his recommen- dation from March, and skeptical that the return to work coincided exactly with the cessation of Bot- tiglia's paid leave. As a result, the OCSB requested Bottiglia undergo an IME, citing its Management Guide to Workplace Accommodation for Employees. And Bottiglia agreed to the IME, with some conditions. However, after the OCSB's law- yer wrote to the medical examiner asking for an opinion on Botti- glia's limitations and restrictions — making several comments on the situation — Bottiglia's lawyer said it was a "prejudiced" letter and Bottiglia would not attend an IME unless it was "fair and objective." This brought matters to a standstill, and in February 2013, Bottiglia tendered his resignation. He also started an application under the Human Rights Code, alleging the OCSB discriminated against him by failing to accom- modate his return to work. He said the board improperly re- quired him to attend an IME and breached the terms of agreement by providing the examiner with misleading information. He said the OCSB left him with no choice but to resign to begin drawing on his retirement pension. But in 2015, the application to the HRTO was dismissed. "It is unfortunate that this pro- cess broke down but I do not find that the OCSB was acting in bad faith," it said. "The OCSB's efforts during this period to meet its proce- dural duty to accommodate the applicant were reasonable, and... it fulfilled the procedural aspect of any duty it would have had to accommodate the applicant. e substantive aspect of any duty to accommodate would not have been triggered because the appli- cant ultimately failed to partici- pate in what I have concluded was the OCSB's reasonable request for medical information by means of an IME." As a result, Bottiglia applied for a judicial review. But, again, his application was dismissed in a May 31, 2017, decision. "The tribunal's decision re- garding the request to attend an IME was likewise reasonable in the circumstances of this case, which gave rise to a legitimate concern on the part of the OCSB about the accuracy and the reli- ability of the information it re- ceived from Mr. Bottiglia's treat- ing physician," said the Ontario Superior Court of Justice Divi- sional Court in Bottiglia v. Ot- tawa Catholic School Board. In the end, the OCSB was awarded costs in the amount of $30,000. Statutory rights Bottiglia's lawyer had said an em- ployer could only request an IME if it had either statutory or con- tractual authority to do so, citing the 1964 case Re. ompson and Town of Oakville. The tribunal's original deci- sion said the management guide permitted the request for an IME. But the court disagreed, saying the OCSB's request was conditional upon a contractual right being contained in a collec- tive agreement or employment contract: "Nothing in writing required Mr. Bottiglia to submit to an IME." However, the court disagreed with Bottiglia (and agreed with the tribunal) when it came to the statutory authority, saying it wasn't right to assume an employ- er can only request an IME when expressly authorized by statute. "In certain circumstances, an employer will be justified in re- questing an IME as part of the duty to accommodate imposed upon employers under the (Hu- man Rights) Code." When Levine did an about-face with respect to Bottiglia's ability to work, "this provided a reasonable and bona fide basis for the OCSB to question the adequacy and rea- sonableness of Dr. Levine's opin- ion," said the court, citing the poli- cies of the Ontario Human Rights Commission: "ere may be instances where there is a reasonable and bona fide basis to question the legitimacy of a person's request for accom- modation, or the adequacy of the information provided… No one can be forced to submit to an in- dependent medical examination but failure to respond to reason- able requests may delay the provi- sion of accommodation until such information is provided." An employer is not entitled to request an IME to second-guess an employee's medical expert, said the court, but it is entitled to make the request if it cannot reasonably expect to obtain the information it needs from the employee's expert, as part of the duty to accommodate. However, that doesn't mean em- ployers have a "freestanding, unre- stricted right to request an IME." Requesting an IME ere's been a long-standing prin- ciple that an employer can only request an IME if there was a con- tract or collective agreement that provided for it, or if there was stat- utory authority. But the divisional court cited section 17.2 of the Human Rights Code which talks about statutory authority as part of procedural duty to accommo- date, said Simon Heath, principal of Heath Law in Mississauga, Ont. "In the right circumstances, where the information can't be se- cured by any other less-intrusive means, an employer's within its right to request an IME," he said. "Employers are entitled to know that you're fit to resume your duties… they need to get a closer look, with better, objective evidence, to figure out if the guy is capable of coming back, and if so, with what, if any, restrictions." In this case, the school board was getting information that didn't appear to be based on any industry standards or objec- tive findings, plus the feedback seemed to link directly to the paid leave ending, said Twila Reid, partner at Stewart McKelvey in St. John's, "which would leave an employer to pause to say, 'Is this really the best accommodation for this individual, and is this in- formation in this individual's best interest, but also in line with what we know about our workplace?'" But requesting an IME is still rare and is more for especially challenging cases, said Legault. It's better for employers to first request more information from the employee's doctor. "Doctors are busy and they don't always have a lot of time to sit down and write reports, and they may not have realized that a lot was hanging on this report, so you usually try to go back to the personal doctor, and that gets rid of a lot of the problematic cases," she said. "You're only left with a small percentage where you're still to- tally worried, baffled, concerned about what you're getting — and that's when you go for the IME." Employers may also request an IME if there's a sudden shift in the information being given, if they fear the doctor has become an advocate for the patient, or they're concerned the employee is not well enough to do his job, said Legault. Best practices One takeaway for employers is when preparing an employment contract or negotiating collective agreements, either put language about medical assessments right into the contract or at least in- corporate them by reference in existing policies that address the issues, said Heath, "so that you can have the foundation." But employers don't really need a specific clause or policy refer- ring to an IME, said Reid. "You have to realize this is an employee that's seeking a change in whatever their regular con- ditions of employment are, so they're either seeking an absence beyond what they're permitted in terms of paid leave; they're seek- ing a modification to their duty or role; or they're seeking some kind of special treatment in some way. So when an employer is assessing that, an employer has to be satis- fied it has reasonable information in terms of assessing that request. I don't personally believe that you need a specific policy that says you're allowed to get an IME." A lot of employers now have standard forms for a medical cer- tificate, so if an employee is going to be off work, her doctor can fill it out with more information than "Off work for medical reasons," she said. "That's the kind of note that drives employers crazy… with no knowledge about the job or what's involved or when the employee's going to return or if they're going to have functional restrictions — that's really the kind of note that drives people crazy." It pays to have good communi- cation around the whole process, said Legault. "The problem is sometimes people are just angry by this point. e employee's angry be- cause they're either about to be cut off or not being allowed to return, and the employer is angry because they think someone's ly- ing, so the communication that would have solved it isn't happen- ing anymore." 'Reasonable, bona fide' basis for request IME < pg. 1 "You're only left with a small percentage where you're still totally worried, baffled, concerned about what you're getting — and that's when you go for the IME." The Ottawa Catholic School Board was looking for more information when it requested an IME from Marcello Bottiglia. Credit:Google Street View

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