Is it a discriminatory practice to ask an employee to produce a doctor's note confirming that she is in a "normal" state of health before allowing her to return to work after an illness?
According to a recent decision from the Human Rights Tribunal of Ontario, Thompson v. 1552754 Ontario Inc., 2013 HRTO 716 (CanLII), the answer can be yes.
The applicant was employed as a “counter person” at the corporate respondent’s place of business, which was a coffee and doughnut shop. Her duties included serving customers, making sandwiches, stocking, light cleaning and closing the store at midnight. She commenced work there in November 2007. She alleged that after she was away from work after being ill for three days in September, 2009, the employer refused to allow her to return to work without medical clearance indicating that her epilepsy did not prevent her from working at the coffee shop.
There was considerable debate as to whether Ms. Thompson's epilepsy was the cause of her three-day absence.
In her written reasons for decision, Adjudicator Maureen Doyle framed the issue as follows:
 It was not disputed that the applicant suffers from a disability. Though there is a factual dispute regarding what medical documentation [the employer] sought, placing the respondents’ evidence at its highest in this regard, the issue before me is whether, by preventing the applicant from returning to work until she provided medical evidence clearing her for a return to work and indicating that she had returned to her “prior state” or “normal” health, the respondents discriminated against her on the basis of disability, contrary to the Code.
Adjudicator Doyle found that, the employer had prevented Ms. Thompson from returning to work for reasons of her disability. Though the employer asserted that this was due to his need for medical assurances that she could return to work given her boyfriend’s comments, Adjudicator Doyle found that the employer's insistence upon such assurances and his attendant refusal to hold her off work was not reasonable and was action taken due to the applicant's disability. Accordingly, Adjudicator Doyle held that the employer had violated the applicant’s right to be free of discrimination due to disability at work, in violation of s. 5(1) of the Ontario Human Rights Code.
In reaching her decision Adjudicator Doyle wrote that:
 I do not find that it was reasonable for [the employer] to have required medical documentation confirming that the applicant had returned to her “prior state” of health or or “normal health” prior to scheduling her for shifts. While I accept that it is appropriate for an employer to take reasonable steps to ensure the safety of the workplace, [the employer] clearly indicated that it was his understanding that the worker’s hours had aggravated her disability condition, and this concerned him. The medical documentation he says he required had nothing to do with assurances that the applicant was cleared to work irregular shifts or an inquiry into what kind of hours would make work safe for the applicant. The assurances he says he sought, therefore, bore little relation to his stated concern. In these circumstances, it is unclear how a letter from a doctor stating that the applicant had returned to her “prior state” of health and was cleared for a return to work, would have done anything to alleviate [the employer]’s stated concern that her hours had caused a deterioration in her condition. He simply held her off work, due to her disability.
Adjudicator Doyle accordingly ordered the employer to pay Ms. Doyle $12,500 as monetary compensation for the loss of her right to be free from discrimination and the injury to her dignity, feelings and self-respect. Adjudicator Doyle further ordered the employer to compensate Ms. Thompson for lost wages between the date she could have returned to work and the date upon which the business was sold.
The case is interesting because it highlights the tension between an employer's interest - and duty - in ensuring a safe workplace and an employee's rights to privacy and to not be discriminated against.
The error that the employer appears to have made was in asking for information unrelated to possible forms of accommodation. The doctor's confirmation that Ms. Thompson had returned to her "prior state of health" would not have added any value to the employer's considerations.
How is an employer to meet the obligation of ensuring a safe working environment? The answer, I would submit, has to come with reference to the nature of the position. Some positions are more dangerous than others and have the potential to place the health and safety of the worker and/or others at risk. In those cases, it may be reasonable for the employer to obtain medical clearance that the employer can safely complete the essential elements of employment. Note that this question is different from a guarantee that the employee will not suffer from seizures. Note also that whether such a 'guarantee' is 'required' will vary depending upon the nature of the worker's responsibilities.
If the employee is unable to produce such a medical certificate, I would submit that the employer then owes a duty to the employee to consider whether the employee can complete the essential elements of employment with accommodation, and to make inquiries as to what forms of accommodation may be required.
Only once the employer has that information can it undertake a reasonable analysis of whether it can accommodate the employee without undue hardship.
Takeaways for Employers
The takeaway for employers is that care must be exercised when requesting doctors' notes. It is easier than one thinks to violate the provisions of the Ontario Human Rights Code, and the law contains both procedural and substantive elements. Click the following link for more on the Duty to Accommodate.
If you are an employer in Ontario and find yourself in a situation where you may need to ask one of your employees for a doctor's note, it may be prudent to seek professional legal advice before doing so. The experienced employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to your business.
Takeaways for Employees
It would be wrong for employees to assume that, based on the Thompson decision, they can never be required to provide a doctor's note after sick leave. In fact, the Ontario Employment Standards Act, 2000 provides that employees can, in certain instances, be required to provide their employers with a doctor's note after taking sick leave. (See, for example, subsection 50(7) of that act.)
Rather, the takeaway for employees is that it can be discriminatory for your employer to ask for certain types of doctors' notes, and it can be discriminatory for an employer to refuse to allow you to work unless you produce a note to the employer's liking.
If you are an Ontario worker and your employer is asking you for a doctor's note and you or your doctor have concerns about the questions, it may be appropriate to seek professional legal advice. The experienced employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to you.
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at email@example.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.