Grey: Blog Post/Commentary
The employee needs to communicate more than a desire to return to work. The employee must demonstrate ability to return to work to trigger the duty to accommodate. The court found that the employer was correct to treat the relationship as being frustrated, when the employee did not supply twice requested medical information.
Frustration of contract, absenteeism, modified duties, bundling work, creating new position.
Commentary on Alberta CA case Kellogg Brown & Root Canada, analysis of post job offer but pre-employment drug testing policy and casual cannabis used for disability; justification of testing for drugs in 'safety sensitive' positions.
Review of Complex Services Inc v Ontario Public Service Employees Union, alerting readers to the employee's responsibility to provide supporting medical documentation as part of the accommodation process; casino employer creating substantial attempt to clarify nature of disability.
Contrasts two cases of non disclosure until after termination, with different results in respect to whether the employer was required to accommodate the employee. Context is important.
Outlines what is required by an employee to disclose as part of the accommodation process, as well as the employer's duty to maintain privacy of medical documents provided.
Discuses a case where a medical resident was terminated from his residency, in part due to his disability and the tribunal awarded a significantly larger general damages award than the usual range. The author of the article opins that this should be standard in respect to large organizations, otherwise it is merely a licensing fee to discriminate.
Discusses a recent case were the Court held extension of an employee’s long term disability benefits was sufficient for the employer to conclude there was no reasonable likelihood that the employee would return to work in the foreseeable future, thus concluding the contract was frustrated as the employee could no longer perform its employment responsibilities due to the unforeseen situation.
Court held that employer only had to show that there is “enough evidence” to conclude there is no reasonable likelihood of the employee returning in a reasonable period, instead of the previous standard required evidence of permanent disability and the employer was not required to make further inquiries but could rely on the documentation it had received to conclude the employment contract was frustrated.
Discusses case of Bellehumeur v Windsor Factory Supply Ltd, ONCA, in which a terminated employee subsequently discloses a disability - decision states that no discrimination had occurred and employer's have a right to take disciplinary action as required.