Is an employer’s request for medical documentation after an employee’s illness in keeping with the Human Rights Code (“Code”)?
The recent case of Thompson v. 1552754 Ontario Inc. examines whether or not it is a breach of the Code for an employer to request medical documentation as a condition of returning an employee to work.
The applicant, Joan Thompson, filed an application with the Human Rights Tribunal of Ontario alleging discrimination with respect to employment because of disability.
The applicant had worked for the respondent for approximately two years in her capacity as a “counter person” in a doughnut and coffee shop. In the past, the applicant had suffered from epileptic seizures, but had not experienced one during any of her shifts, nor any seizures in the four to five years prior to the incident of alleged discrimination.[i]
At the time of the incident, the respondents were aware of the applicant’s medical condition. When the applicant alleged that she had become ill for three days due to a stomach flu, the respondent refused to allow her back to work without a medical note assuring the corporate respondent that she was ready to return to work and that she would be seizure free.
The corporate respondent, among them Donald Park, submitted a different version of facts in that the applicant held him responsible for her sickness due to her work schedule.[ii] Further, that the applicant had not approached him in regard to regaining her job, and had in essence quit.
The respondent further alleged that out of concern for her safety, the applicant had been advised that she would not be put back on the schedule until she produced a note from her doctor indicating that her health had returned to its “prior state” and that she was fit to return to work.[iii]
The applicant testified that after being off work she called the coffee shop to find out when she was next scheduled to work. When she eventually spoke with the respondent, Mr. Park, he stated that he wanted a doctor’s note saying that she would have no seizures in the coffee shop.[iv] Following this, the applicant continued to make efforts to contact Mr. Park when she saw that she was not being returned to the work schedule. Although her name appeared on the schedule, the applicant was not being assigned any shifts.
Mr. Park maintained that the applicant never provided the kind of medical documentation he sought. Although her doctor’s note addressed her three sick days, the note did not indicate that she was fit to return to work, which was a condition of her return.[v]
Analysis and the decision
The question before the Tribunal was whether or not stipulating that medical evidence be provided as a condition of returning to work would be considered discrimination based on her disability. The Tribunal found that the respondent prevented the applicant from returning to work for reasons of disability, thereby violating the applicant’s right to be free from discrimination. Further it stated:
I do not find that it was reasonable for Donald Park to have required medical documentation confirming that the applicant had returned to her “prior state” of health or “normal health” prior to scheduling her for shifts. [vi]
The applicant’s damages included $12,500.00 for violation of her inherent right to be free of discrimination with respect to employment and to be free from reprisal and for the injury to dignity, feelings and self–respect flowing from this violation, as well as $4,370.00 in respect of loss arising out of the infringement of the applicant’s right to be free from discrimination with respect to employment.[vii]
The takeaway for employers is that without proper education and training, a business may find themselves before the Human Rights Tribunal and having to pay a hefty price.
Kevin Sambrano is a human rights paralegal practicing in Toronto, Markham, Hamilton, Oakville, Mississauga and Oshawa. Do you have a human rights issue Kevin can help you with? Contact Kevin today at 647 860 8339 or through the contact link for a free consultation. Or you may visit www.sambranolegal.com
[i] Thompson v. 1552754 Ontario Inc. 2013 HRTO 716 (CanLII) Para. 13
[ii] Ibid. para. 22
[iii] Ibid., para. 20
[iv] Ibid., para. 21
[v] Ibid., para. 31
[vi] Ibid., para. 81
[vii] Ibid., para. 3-4