Dealing with disability-related absence

Employees dismissed for underperformance never go quietly. Often they complain the cards were stacked against them or that their employer’s decision was somehow unfair. But what about an employee who claims he was fired because of discrimination? Sean Carter tried this card at a recent human rights hearing and learned that proving discrimination is more difficult than he thought. 

Carter, a program coordinator at a rehab clinic in Hamilton, Ontario, was injured in a car accident, requiring him to take time off from work. When he returned, Carter felt he was treated differently, claiming he was disciplined more often and his views were dismissed. Carter then suffered from stress and depression, which he said resulted from workload and family deaths. His performance deteriorated, and when the clinic tried to manage it, Carter left. He wrote cryptically that he was going to see his doctor “for some results” and would be off work for a few weeks. Five days later, he was fired. 

Carter complained to the Human Rights Tribunal in Ontario, perhaps Canada’s most employee-friendly administrative body. However, instead of finding that Carter was fired for his disability, the tribunal found that he did not even have one. This is because Carter failed to show that he even disclosed a medical condition or any medically-related needs to his employer. Therefore, the tribunal wrote, Carter’s employer had no obligation to accommodate him and his termination was unrelated to his request for medical leave. 

Not every claim for sick leave leads to a “disability” that must be accommodated. Too many employers accept cryptic doctor’s notes without scrutiny and too many employees fail to properly clarify their medical needs. Most of the time, both employers and employees are just ignorant of the law. 

If you are unable to work because of illness or disability, or employ someone who is, consider these steps:

• Provide or request written medical authentication of an illness from a treating physician and ensure that the report is comprehensive.  
• Meet and discuss accommodation. Employees don’t need to disclose their condition, just the fact they have one and need assistance from their employer to remain productive. 
• Request or provide modified work. Most jobs can be performed, despite an illness or disability, with reasonable adaptations.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.  Reach him at dan@toronto-employmentlawyer.com. Follow him on Twitter @danlublin.