Canadian Safety Reporter

June 2015

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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CSR | June 2015 | News ©2015 Thomson Reuters Canada Ltd ISBN/ISSN: 978-0-7798-2810-4 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of the publisher (Carswell, a Thomson Reuters business). Canadian Safety Reporter is part of the Canadian HR Reporter group of publications: • Canadian HR Reporter — • Canadian Occupational Safety magazine — • Canadian Payroll Reporter — • Canadian Employment Law Today — • Canadian Labour Reporter — See for information Safety Reporter Canadian Published 12 times a year by Thomson Reuters Canada Ltd. Subscription rate: $129 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5106 E-mail: carswell.customerrelations Website: One Corporate Plaza 2075 Kennedy Road Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media Karen Lorimer Publisher John Hobel Associate Publisher/Managing Editor Todd Humber Lead Editor Sarah Dobson Assistant Editor Mallory Hendry (On Leave) Assistant Editor Anastasiya Jogal Contributing Editors Liz Foster Sabrina Nanji Liz Bernier Jeffrey R. Smith Marketing Manager Mohammad Ali (416) 609-5866 Circulation Co-ordinator Keith Fulford (416) 649-9585 When is it 'reasonable' to request more medical information? Safety of workplace a consideration when it comes to employee's return to work BY LISA GALLIVAN AND ALISON STRACHAN IN A RECENT DECISION, Donaldson and Western Grain By-Products Storage Ltd., the Federal Court of Appeal said it is "reasonable" to request more or better medical information when circumstances warrant that request. e case involved an employee who left work at a grain terminal in under Bay, Ont., in May 2007 complaining of abdominal pain and vomiting. He was hospitalized for about 10 days. A month after getting out of the hospital, he filed a claim with the Ontario Workplace Safety and Insurance Board (WSIB) saying the symptoms he experienced may have resulted from an allergic reaction to grain dust. is claim was dismissed. In October 2007, the em- ployee provided a doctor's note saying "Mr. Donaldson is now capable of returning to his job and employment." But the em- ployee was told he could not return to work until he pro- vided "a better doctor's note as to his fitness level in relation to his duties and the work envi- ronment." In mid-November, the em- ployee complained to Human Resources and Social Develop- ment Canada (HRSDC) claim- ing he "was not allowed to go back to work with a Dr.'s note, I feel unjust dismissal." When responding to an inquiry from HRSDC in mid-December, the employer said it found the doc- tor's note "suspicious" so it had requested a better note. In March 2008, the employer wrote to the employee asking for the "previously requested information" including a doc- tor's certificate saying he was unable to work between May and October 2007, and a cur- rent doctor's certificate con- firming he was fit and able to resume normal work duties. An adjudicator appointed under the Canada Labour Code concluded the employee had been constructively dismissed (on the basis of the request for better medical information) and his dismissal was unjust. e adjudicator also concluded the request for further medical information was unnecessary. On judicial review, a judge concluded the adjudicator's de- cision was unreasonable and set it aside. e employee appealed to the Federal Court of Canada. Federal Court of Appeal e Federal Court of Appeal ultimately found the request for further medical information was reasonable: "It is important to consider that the appellant had been off work for close to six months when he attempted to return to work, and that he had been hospitalized for nearly two weeks at the beginning of this period. e appellant had also indicated to the respondent during the summer months that he remained unwell and could not return to work. In addition, prior to the events in question, the appellant had never been off work for such a long period, nor had he ever made any WSIB claims. "...while the WSIB report in- dicated that the appellant may not have suffered from an al- lergy to grain dust, it clearly in- dicated that, as of Oct. 17, 2007, the appellant was not particu- larly well. "e adjudicator improp- erly distinguished Re ompson General Hospital, which stands for the proposition that, in cer- tain circumstances, employers may demand further medical information of employees be- fore allowing them to return to work after being on sick leave. Considering the factual cir- cumstances, it was reasonable for the respondent, who has an obligation to ensure the safety of its employees, to request fur- ther medical information from the appellant upon his return. e two-line doctor's note that the appellant provided did not contain enough information for the respondent to satisfactorily conclude that the appellant may safely return to work." Employer implications Employers may demand more detailed medical information before allowing an employee to return to work after being on sick leave, but only if it is rea- sonable. e Federal Court of Appeal was clear an employer has an obligation to ensure the safety of its employees and, in some cases, this provides the "reasonableness" necessary to request further or better medi- cal information. is decision is a reminder to have an absence management system in place that keeps med- ical communication relevant and up-to-date throughout the period of an absence, particu- larly when the absence is for a protracted period. Lisa Gallivan is a partner with Stew- art McKelvey in Halifax practising labour and employment law. She can be reached at (902) 420-3392 or lgal- Alison Strachan is an associate at Stewart McKelvey in Halifax, also practising labour and employment law. She can be reached at (902) 420-3387.

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