Managing Disabilities in the Workplace and Frustration of...

Managing Disabilities in the Workplace and Frustration of Contract

June 14, 2016

Labour, Employment and Human Rights Group Seminar (Fasken Martineau Institute) 1

Managing Disabilities in

the Workplace and

Frustration of Contract

Presenters: Andrew Bratt, Christian

Paquette and Nicole Singh

Agenda

• The Legal Framework

• The Duty to Accommodate

• Medical Notes – General principles

– Common issues

– Case studies

• Frustration of Contract – General principles

– Case law

– Practical application


June 14, 2016


Statistics…

In Canada,

illness or disability

account

for most absenteeism

(about 2/3)

One in five

Canadians

experiences a mental

health episode in

their lifetime

Statistics…

500,000 Canadians, in any

given week, are unable to

work due to mental health

issues.

More than 6.7 million

Canadians live with a

mental health issue.


June 14, 2016


Statistics…

1 in 3 workplace disability

claims are related to

mental health illness.

70% of disability

costs are attributed to

mental illness.

Statistics…

Disability costs for

employers are on the rise.

The total cost of disability

for employers is estimated

to be 12% - 19% of payroll

costs.

For every 1,000

employees, an

employer can face

nearly $380,000 each

year in productivity

losses, in addition to

health care costs.


June 14, 2016


Legal Framework to Manage

Disabilities

• Human rights law

• Contract (collective agreement)

• Workplace safety insurance legislation

• Employment standards legislation

Human Rights Law

• Definition of disability is extremely broad

The Code protects people from discrimination and harassment because

of past, present and perceived disabilities. “Disability” covers a broad

range and degree of conditions, some visible and some not visible. A

disability may have been present from birth, caused by an accident, or

developed over time.

There are physical, mental and learning disabilities, mental disorders,

hearing or vision disabilities, epilepsy, mental health disabilities and

addictions, environmental sensitivities, and other conditions.

• Be careful in adopting overly sceptical view of employee’s disability

claim


June 14, 2016


Human Rights Law: Duty to

Accommodate

• May be triggered when an employee makes a

request or informs his/her employer of a particular illness or disability

• In some cases, the employer may have to be proactive in probing for a potential disability

• Employers must be vigilant: some attendance issues are the result of disability or illness

• Accommodation is a process; Not a science, Not mechanic – Flexibility is fundamental

Disability Management

• No hard and fast rules

• Case-by-case basis/approach

• Requires patience

• Document, document, document diligence

• WHY?

– Morally correct

– Legally correct

– Significant exposure if you get it wrong $$$$$$$


June 14, 2016


Medical Notes

What to do when presented with a vague medical note?

– Consider objectives and develop a flexible strategy

– Avoid knee-jerk reactions / emotional response

– Inform yourself (e.g. facts, operational issues, etc.)

– Be patient; one step at a time

– Consider possible outcomes / prepare for next step

Medical Notes

What is the issue you are dealing with?

– Accommodation request

– Request for payment during medical leave

– Employee ready to return to work following an absence

– Medical produced to excuse or justify misconduct

Why are you receiving a medical note?


June 14, 2016


Medical Notes - Issues

Consider your objectives:

– Part ways with the employee at all costs

– Ensure safe and/or timely return to work

– Ensure proper documentation obtained during leave

– Adjudicate claim for disability benefits

– Prevent abuse/malingering

Don’t ask for the sake of asking – have a purpose

and be strategic!


• What information do you need to proceed?

– Confirmation of fitness to RTW

– Confirmation of disability / justification for absence

– Basic understanding of the condition?

– Functional limitations and/or restrictions

– Information re potential accommodations

– Duration (i.e. temporary or permanent)

– Prognosis

– Treatment

Information required is directly tied to objectives


June 14, 2016


DOs

• What can you ask for?

- Nature of the illness (do you really need to know?)

- Expected duration

- Restrictions and/or limitations

- Possible accommodations

- Basis for medical conclusions (e.g. testing)

- Treatment plans (?) and employee compliance

- Extent/scope of patient/doctor relationship

- Dates of visits and next scheduled appointment

DONTs

• What can’t you ask for?

- Diagnosis

- Mental/physical health history

- Medical records (depends)

- IME (without a reasonable basis)


June 14, 2016


Medical Notes – Issues

Can your objectives be met without this information?

– If yes, consider :

• not pursuing the information

• a more focused or targeted inquiry


Are you legally entitled to the information?

– Written consent (may be implicit)

– Contractual

– Statutory (e.g. ESA, WSIA)

Best approach: letter to the employee, letter to the

treating physician and signed authorization form


June 14, 2016



Have you fully informed the employee and doctor?

– Vague medical notes are sometimes a result of the

employer not specifying what information it requires.

– Sometimes a vague medical note may be the result of

the employer not fully advising the doctor of the context.


Do you have reason to doubt what the employee

or doctor is telling you?

– The less reason you have, the less reason to push for

more detail and vice versa.

– A vague medical note from a long term good employee,

whose attendance record is good, should suffice for a

short absence.


June 14, 2016


Medical Notes – Practical

Example #1

Fitness to Return to Work

– A warehouse worker provides a medical note from his

family doctor saying: “Alex can return to work on May

1”.

– Alex is returning after a six month absence due to a

chronic wrist injury.

– As a warehouse worker, Alex must often operate

machinery and heavy tools.

– The summer is a critical time for the employer for the

type of work Alex would be performing


Example #2

Ongoing Medical Absence and No End in Sight

– Jane has been off work on a medical leave of absence

for 2+ years (general anxiety and depression)

– Employer believes it has been long enough and that it is

now time to terminate Jane’s employment

– Last medical note on file is from 8 months prior

– Employer has no information about Jane’s current

condition


June 14, 2016



Example #2 continued…

Most recent medical note (8 months prior):

“Jane continues to be under my care. She suffers

from general anxiety and depression, which

makes it difficult for her to maintain full-time

employment at this time. I am hopeful that she

will be able to return at some point in the future.

Prognosis is guarded.

Can you terminate?


Example #2 continued…

“In response to your most recent letter, Jane

continues to be totally disabled from working.

However, we have noted some improvement in

her mood and remain hopeful that she will return

to employment, perhaps in the next few months. I

will reassess her next month.”

Terminate now?

Next steps?


June 14, 2016


Frustration of Contract

What is frustration of contract?

– When is it triggered?

– What are an employer’s rights upon frustration of

contract?

– What are an employee’s rights upon frustration of

contract?

Fraser v. UBS, 2011 ONSC 5448

Facts:

• 20 year employee

• STD (major depression and anxiety phobia)

• Prognosis optimistic

• Failed attempt to RTW (Dr’s prognosis proven wrong)

• Further 6 months of STD, then LTD

• LTD benefits cease (change of definition), but employee does not

RTW

• Evidence that she did not participate in or at least report on her

ongoing medical treatment to the insurer

• Employer terminates for frustration, after 3.5 years of absence


June 14, 2016


Fraser v. UBS, 2011 ONSC 5448

Decision:

• Frustration of contract focuses on the time of termination

• Test: no reasonable likelihood of the employee being able

to return to work within a reasonable time

• Must also take into account all relevant facts known to

employer at that time

• Post-termination evidence admissible, but cannot be the

sole consideration

• Frustration established in this case

Ciszkowski v. Canac Kitchens,

2015 ONSC 73

Facts:

• 18 year employee

• After a series of confrontational incidents at work and a

period of short term disability due to a heart condition, the

plaintiff left work on January 11, 2006 because he had

"been feeling ill and emotional" and was also complaining

of chest pain.

• The plaintiff never returned to work at Canac. He received

payment of long term disability benefits .


June 14, 2016



2015 ONSC 73

• A letter from his psychiatrist, dated March 27, 2006,

diagnosed the plaintiff with "a major depressive disorder

with a marked anxiety component." The letter indicated

that the plaintiff was not currently able to work and that

psychiatric intervention was warranted.

• Canac terminated the plaintiff's employment because the

company was in the midst of shutting down its operations

in Canada.

• The employer took the position that upon the plaintiff's

termination, the plaintiff's permanent disability had

frustrated the contract of employment.


2015 ONSC 73

Decision:

• The court did not find that the plaintiff's contract of

employment was frustrated because:

– at the time of his termination the plaintiff was

constructively dismissed

– the breadth and nature of the plaintiff's disability were

not known at the time of termination

– the subsequent doctors' reports did not clearly claim

that he was permanently disabled as of those dates


June 14, 2016



2015 ONSC 73

• There was no post-termination medical evidence

that established that the plaintiff was totally

disabled and would have been unable to return to

work within a reasonable period

• The plaintiff's disability was clearly prolonged, but

doctors treating and diagnosing the plaintiff

continued to recommend various courses of

treatment and to express varying degrees of

optimism regarding the plaintiff's prospects for

recovery.

Gahagan v. James Campbell Inc.,

2014 HRTO 14

Facts:

• James Campbell Inc. (“JCI”) operated a series of

McDonald’s restaurants

• Ms. Gahagan had serious back injury at work

• Ms. Gahagan immediately went on medical leave and

never returned to work

• Restrictions had some permanence; WSIB concludes no

workplace accommodation possible

• 2.5 years later, employment terminated


June 14, 2016


Gahagan v. James Campbell Inc.,

2014 HRTO 14

Decision:

• The HRTO decided that the employment contract

was frustrated

– Ms. Gahagan’s condition had not improved during the

2.5 years since her injury

– There was no way the employer could accommodate

her medical restrictions. This was so despite JCI’s

failure to fully cooperate with the WSIB.

Frustration of Contract: Case

Study 1

• Ms. Gone, service representative, is absent for

more than 3 years

• LTD benefits still continue

• Physician update, at request of employer: Her compliance with treatment has been excellent.

Prognosis to return to work remains poor given lack of sustained mood stability.

Gradual return to work not appropriate, at least until three months of stability is

achieved, which has proven impossible over the last 2 years.

I hope that we may be able to stabilize her mood to a point where she may be

able to attempt a return to work, though I believe she is not at a point where she

would be able to return to work at present.

• What to do?


June 14, 2016



Study 1

• Employer requests a further update 4 months later

• Physician responds: Suicidal idea episodes were concerning at the beginning of the month, however,

patient reports a significant improvement in her symptoms.

Despite general improvement in her mood, since stopping lithium, she noted

increased anxiety symptoms.

Adjustment to medication in order. Plan to follow up in 2 months.

• Another follow-up is requested 4 months later: Worsening manic and psychotic symptoms. No evidence of acutely increased risk

to herself or others.

• Does this amount to a frustration of contract?


Study 1

• Employer requests response to specific questions once again, 2

months later: With regard to return to work in full or modified duties, I believe that would be impossible at this

time and likely for the near future. Having followed Ms. Gone since 2011, there has not been a

period of greater than two months of any relative stability, either from the perspective of suicide

risk or of anxiety or cognitive impairment. Furthermore, at other times where these were less of

an issue, she was having symptoms of mania and would be showing impaired judgment and

concentration.

There is no expected resolution date given the fact that over the last few years, I have tried a

wide variety of treatments, some of which appear to have had some slight benefit, namely the

quetiapine, although none that have ever led to any sustained period of stability.

I do not believe that she would be able to tolerate a sustained return to work given the lack of

stability in the past few years, and a return to work would certainly worsen her underlying

medical condition.

I do believe that there would be a safety risk to Ms. Gone should she return to work particularly

given as she describes her workplace as an anxiety provoking environment. However, I am not

aware that at any time where she may be a risk to others.

• Does this amount to a frustration

of contract?


June 14, 2016



Study 2

• Ms. Absentia was diagnosed with Graves disease

• Off on STD, then LTD for 2 years

• LTD benefits cease under new “disability”

definition

• Ms. Absentia does not wish to return to work yet

• At the request of employer, physician writes: I spoke with Mrs. Absentia on February 4th, 2016 concerning her job description and

return to work. She is able to perform four of the twelve main tasks listed; namely

sweep floors, dusting, dispose of garbage and use perform reporting duties

(paperwork). As such she should have to do modified duties. These duties would

need to graduated.


Study 2

• Further follow up requested 3 months later:

To whom it may concern:

I am writing re your April 1st, request. I can’t see Ms. Absentia returning to

work on a regular basis. We are having difficulties managing her

Addisons’s disease which has been associated with life threatening

hyperkalemia. She is being followed by Drs. L and R. I don’t think

returning to work would aggravate her condition, but I can’ see her working

alone or doing all her given tasks. Things are looking better according to

the cardiologist’s reports so far (Dr. R) but I don’t have his consult report as

yet. I was waiting for his report but am sending this along to let you be

aware of the present status.

• Does this amount to a frustration of contract?


June 14, 2016


Frustration of Contract – Practical

Application

• Seek clarification of restrictions at reasonable

intervals

• Keep track of changes

– Is there improvement over time?

– Are doctors pessimistic or optimistic?

– Ask the question

• reasonable period of time is required before

frustration can be found, longer where LTD

• Human rights trumps (accommodate)

• Open the door one last time…

Pre-negotiated frustration clauses

McGill University Health Centre (Montreal General Hospital)

v. Syndicat des employés de l'Hôpital général de Montréal,

2007 SCC 4

• Leave of absence for more than 2 years

• Failed attempt to RTW

• Collective agreement contains automatic termination

clause after 3 years of absence

– However, period was extended by employer

• As employee about to RTW, automobile accident

• Employee terminated

• Grievance: failure to accommodate


June 14, 2016


Pre-negotiated frustration clauses

Majority:

• Parties cannot agree to lower protection than human rights

• Accommodation is incompatible with mechanical

application of a general standard

• Period negotiated is a significant factor to consider

nonetheless as it is evidence of undue hardship

Minority:

• Automatic termination clauses not presumptively

discriminatory

• Absent a case of prima facie discrimination, no

requirement to justify the clause or its conduct

A word on frustration in the

federal context

Kingsway Transport v Teamsters, Local Union 91,

2012 CanLII 20111

• Employee on disability for 21 years after injury on

the job

• Employer continued to contribute to his health

benefits and pension plan

• Company finally terminated employee

• Arbitrator Slotnick: Canada Labour Code

precludes termination


June 14, 2016


Frustration and employer liability

• Employers must still pay statutory entitlements

where frustration is established

• As such, best to be proactive rather than tolerating

absences indefinitely

• Working notice? The peculiar case of Quality Meat

Packers Ltd. v. United Food and Commercial

Workers Canada, Local 175 (Jaiteh Grievance)

[2013] O.L.A.A. No. 1

Andrew Bratt

Partner

+ 1 416 868 3412

[email protected]

Nicole Singh

Associate

+ 1 416 868 3481

[email protected]

Christian Paquette

Partner

+ 1 416 865 5148

[email protected]


June 14, 2016


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