Accommodation is a process mandated by the Ontario Human Rights Code where an employee requires some sort of modification to their schedule or duties due to disability or some other reason protected by the Human Rights Code (i.e. family obligations, addiction, religious needs, etc.).
Employers are required to accommodate employees who genuinely require accommodation to the point of undue hardship. For more on what may be considered “undue hardship” read my blog To What Extent Do Dentists Have to Accommodate Employees.
In certain circumstances, and as part of the accommodation process, employers may ask employees to provide a doctor’s note outlining the prognosis and any accommodation requirements which the employee needs to return to work. For more information on your obligations when an employee is sick, read my blog Staff On Sick Leave: What Are Your Obligations As An Employer. But what happens if that note is contradictory (i.e. says the employee does not need accommodation but you notice that the employee cannot perform their job due to the disability) or if the note is from a doctor who is unqualified (i.e. the employee brings a note from their chiropractor regarding the employee’s cancer treatment – a medical issue they are unqualified to diagnose or treat)? Well in circumstances such as these, employers may be justified in asking for a second opinion or independent medical examination (“IME”).
Recently, the Ontario Divisional Court upheld a decision by the Human Rights Tribunal which ruled that an employer may, in certain instances, require an employee to undergo an independent medical examination (“IME”) during the accommodation process without the need for specific contractual provisions (Bottiglia v. Ottawa Catholic School Board, 2017 ONSC 2517). Mr. Bottiglia had worked for the Ottawa Catholic School Board (“OCSB”) for over 40 years. He started off as a teacher and progressed to superintendent. Mr. Bottiglia became ill in 2010 and was unable to work for approximately two years. He communicated in February 2012 that he was unable to return to work and that his recovery would take a prolonged period of time. In June 2012, the OCSB received a letter from Mr. Bottiglia’s doctor stating that he was unable to attend work and that a return to the OCSB might place him at a serious risk of a relapse. Then in August 2012, the OCSB was told that Mr. Bottiglia was capable of returning to work on a limited basis sometime in the next two months. The OCSB required Mr. Bottiglia to submit to an IME with a doctor of their choosing. Mr. Bottiglia refused to do so and filed a complaint of discrimination with the Human Rights Tribunal.
The Tribunal assessed Mr. Bottiglia’s case and found it reasonable, given the significant and unexpected changes in Mr. Battiglia’s stated ability to return to work, that the OCSB would want further information about his medical condition and ability to return to work. The OCSB also found it suspect that Mr. Bottiglia’s return to work coincided with the end of his paid leave, which the Tribunal also took into consideration. Ultimately, the Tribunal found that there was no discrimination and that Mr. Bottiglia should have submitted to the IME requested by the OCSB.
The Divisional Court, when reviewing the Tribunal’s decision stated that:
In my view, the Tribunal’s decision on this issue was a reasonable one. In certain circumstances, the procedural aspect of an employee’s duty to accommodate will permit, or even require, the employer to ask for a second medical opinion. Without attempting to define all of those circumstances, they will include the circumstances that the Tribunal reasonably found existed here, where the employer had a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert. [emphasis added]
As the OHRC says in its Policy, an employer is not entitled to request an IME in an effort to second-guess an employee’s medical expert. An employer is only entitled to request that an employee undergo an IME where the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate.
It is important to note that in August 2017 the Court of Appeal for Ontario refused Mr. Bottiglia’s application for leave to appeal, thereby confirming that the Divisional Court decision remains good law in Ontario and employers may, in some cases, be justified in requiring employees to undergo IME.
The Human Rights Commission has advice of their own (which is cited by the Court in the Bottiglia case):
While the employer is entitled to get all the information needed to make the accommodation, it must also accept accommodation requests in good faith and respect the dignity of employees. A request for a second opinion, an opinion from a specialist or an independent medical examination (IME) must be necessary to provide accommodation. Such a request should not be made to refute whether the employee has the disability in the first place or to avoid providing the accommodation.
Example: An employee provides a doctor’s note that asks for accommodation but does not state any particular diagnosis. The employee shows no observable symptoms of illness in the workplace, and the employer suspects that the employee is making up a disability to get more flexibility in her work arrangements. The employer wants to prove this by having the employee take an independent medical examination. Such an approach would not be consistent with the Code.
It is not normally advisable for an employer to second-guess the validity of an employee’s doctor’s advice, only on a suspicion that it is not objective because it is based on the employee’s own perceptions. Avoid challenging a medical note or requiring a second opinion unless there is evidence that the doctor’s recommendations are based on something other than his or her best opinion as to what is needed to make sure the patient recovers.
The legitimacy of a request for more medical information will depend on the information already received. A request for more medical information will be appropriate if there is a reasonable and objective basis for seeing the initial information as inadequate or inaccurate. Examples might be if there appears to be a problem with the degree of expertise or type of expertise of the doctor who provided the initial medical opinion, or if there is some reasonable basis to believe that the employee is not fit to do the job despite the existence of a medical report to the contrary. Document reasons for requesting more medical evidence.
Example: After a serious car accident, an employee is cleared by her doctor to return to work. On more than one occasion, she becomes dizzy at the end of her 12-hour night shift operating a machine and narrowly misses hurting herself. The employer asks for more information from her doctor about possible accommodations. Once again, the doctor’s note indicates that the employee is fit to work and that no accommodation steps are needed. The employer then asks the employee to attend an assessment by a doctor of her choosing, with expertise in workplace accommodations.
If a second opinion or independent medical exam (IME) is warranted, a good approach is to select a doctor who is acceptable to both the employee and the employer, and the union (if there is one) rather than insisting that an employee meet with a doctor that the employer has chosen. Give the employee enough information to understand the purpose of such an examination, who will conduct it and what assessments will be used.
As an employer, you are required to accommodate employees who are genuinely in need of such accommodation. However, as my colleague Jonnathan Borrelli always says, “accommodation is a two-way street” – see his blog Your Staff Must Co-Operate in Obtaining Accommodation. Employees cannot simply dictate the type and amount of accommodation they need. As an employer you can request information from a medical professional to help guide the accommodation process. In certain, albeit limited circumstances, you may have occasion to ask the employee to submit to a second opinion or an IME.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you need advice about your obligations as an employer under the Ontario Human Rights Code, or need help with the accommodation process, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
Are you a dental office in Ontario with 20 or more employees?
If so, then you are legally required to file an accessibility compliance report by no later than December 31, 2017 under the Accessibility for Ontarians with Disabilities Act (AODA).
The questions/requirements contained in the compliance report include the following:
If a person with a disability is accompanied by a support person, does your organization ensure that the persons are permitted to enter the premises together and that the person with a disability is not prevented from having access to the support person while on your premises?
Does your organization ensure that the required persons receive training on the accessibility standards for customer service?
Has your organization established a process for receiving and responding to feedback on the accessibility of its customer service and does it make information about the feedback process readily available to the public?
Other than the requirements cited in the above questions, is your organization complying with all other requirements in effect under the Customer Service Standard?
If your answer is not YES to all of the questions, then you are not in compliance with the AODA and your office may be audited to check on compliance. You are also required to re-submit the form if your compliance status changes.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you need advice about your other obligations under the AODA, please contact me Ljubica Durlovska, Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
The Royal Ottawa Health Care Group was recently fined $75,000 for violating the Occupational Health and Safety Act (“OHSA“).
This decision stems from a series of events at Brockville Mental Health Centre. Starting in August 2014, multiple nurses were assaulted in various ways by patients over the span of a couple of months. Finally, in October 2014 a nurse was stabbed by a patient with a pen. The nurse, who had been escorting the patient to the bathroom when the patient lashed out, sustained serious injuries and the Ministry of Labour was notified of the incident.
The Royal Ottawa Health Care Group, which operates Brockville, was found guilty of failing to reassess the risks of workplace violence and to ensure policies and programs continue to protect workers (section 32.0.3(4) of the OHSA).
Because non-compliance with the OHSA is a provincial offence, the Ontario Court of Justice imposed a fine of $75,000. The court also added a 25% victim surcharge that goes into a provincial government fund to assist victims of crime.
You can read the Court Bulletin about this case here.
If you are wondering what you can do to make sure you don’t end up in the shoes of the Royal Ottawa Health Care Group, here is the takeaway:
Don’t simply provide violence policies / procedures and put them on the shelf, never to be seen again. Dust those policies off at least once a year and even more often when the need arises, as it did in this case.
We also advise involving your health and safety representative or joint health and safety committee in the process; ask them to review the policy and hold a staff meeting about ideas on how to improve the violence policies / procedures, if necessary. More involvement by workers in drafting and revising these types of policies means more compliance and adherence to those policies.
The same principles apply to your other policies, such as harassment, health and safety, sexual harassment, etc. For more blogs about your obligations under the OHSA, click here.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you need advice about your obligations as an employer under the OHSA, or need help coming up with and implementing a new office policy manual, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
Infection prevention and control and Public Health inspections are a hot topic! Dentists are worried about their practices and asking us for help. Here is a quick overview of what you need to know about Public Health Ontario (“PHO“) inspections.
The Health Protection and Promotion Act, RSO 1990, c H.7 (“HPPA“) provides the legislative basis on which PHO can receive complaints, conduct inspections and issue/enforce orders.
Yes. There is no protocol in place for PHO to do random inspections of dental offices. At present they only inspect in the event of:
Once a complaint is received, the inspector must notify the RCDSO and will work collaboratively with the RCDSO to conduct the inspection. If necessary, other government branches will be notified, such as the Ministry of Labour if, for example, the investigation uncovers issues under the Occupational Health and Safety Act (for more information about your duties under this Act, click here).
An inspector may enter the premises at “reasonable times” to make inquiries. If you deny entry to the inspector, they may apply to a judge for a warrant to enter and conduct the inspection provided there are reasonable and probable grounds for believing that access is necessary.
Once on the premises, the inspector has the power to do any number of things, including:
Inspectors are looking for compliance with the RCDSO guidelines, PIDAC’s best practices document, and manufacturer’s guidelines (where applicable). Here is a list of some of the infractions that inspectors have found upon entering dental and other offices:
If one or more infractions – also called infection prevention and control (“IPAC“) lapses – are found at the dental practice, then the inspector has powers to make orders to correct those lapses. An order may be made orally, on the spot, if taking the time to put the order in writing will increase the health hazard.
Orders may include:
Appeals from orders of inspectors lie with the Health Services Appeal and Review Board. However, launching an appeal does not automatically preclude you from having to comply with an inspector’s order unless the Board specifically allows it pending a hearing.
Then, the inspector or medical officer may direct its staff to carry out the order, including posting a public notice about the existence of a health hazard. If this occurs, then you will be responsible for paying for the work required plus legal costs. If you refuse to pay, then the amount will be tacked onto your property tax bill.
Failure to comply is an offence punishable by:
Note: directors, managers and officers are automatically liable for corporations under HPPA unless they can prove that they took all reasonable steps to prevent the commission of the offence.
Other remedies available to PHO if you refuse to comply include obtaining an injunction from the Superior Court of Justice which is an order by the court requiring you to comply. Refusal to comply with a court order may culminate in contempt of court plus imprisonment.
Where an investigation is undertaken due to a complaint, the complainant must be notified of the results of that investigation.
Where an investigation was undertaken and one or more IPAC lapses were identified and orders made, Each public health unit of PHO must publish both the initial report (consisting of findings and orders made) and the final report (consisting of how lapse was corrected). For your information, there are 36 public health units across Ontario and each one has their own website where lapses are posted.
Currently there are about 10 IPAC lapse reports posted about dental offices across Ontario. Here are links to the IPAC lapse reports, as found on each health unit’s website that may help you decipher what public health will be looking for if they enter your office:
Note: IPAC lapse reports are only required to be posted for 12 months. These reports will eventually be taken down (and hence you may find that some links will, in time, go stale).
Beyond the IPAC lapse reports, in some instances, the public health unit may advise patients of the lapse, if the lapse has the possibility of affecting them, as was done in the case of Guelph Dental Associates:
Also, if the media picks up on a closure or IPAC lapse, you may find yourself in the midst of a flurry of negative press, as Guelph Dental Associates has in the past few months:
If you want to avoid a complaint in the first place, you should do the following:
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you have any questions about HPPA or PHO inspections, need advice about your obligations as an employer under the OHSA, or need help coming up with and implementing a new office policy manual, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
According to the Ontario Human Rights Code, there are certain circumstances in which an employer will be required to “accommodate” an employee.
Some of the grounds that require accommodation include:
Accommodation can range from having to change a schedule because the employee must work reduced hours, to having to buy additional office equipment such as ergonomic chairs or temporarily changing the employee’s duties (for example, having an assistant do administrative duties).
When we tell our dentist clients about this duty, they say “of course I will accommodate my employee” but quickly follow with “to what point”?
The Ontario Human Rights Code says that a court/tribunal cannot find that the employer is incapable of accommodating unless satisfied that the needs of the employee cannot be accommodated without undue hardship on the employer [s. 17(2)].
To determine what is undue hardship, courts/tribunals are only permitted to look at:
Other considerations, such as inconvenience, employee morale, what it may look like to patients, etc. cannot be taken into consideration (unless they somehow tie into one of the three allowable considerations).
Here are two cases where the “undue hardship” of the employer was assessed and the outcome:
Munroe v. Padulo Integrated Inc., 2011 HRTO 1410 (CanLII)
The Employee, Munroe was an account director at an advertising company. He had been employed with Padulo for several years when he found out he would need hip surgery. That surgery and recovery took about 18 months. Instead of providing Munroe with accommodation to return to work, the company terminated his employment. The company argued that was because the company was in the process of downsizing and cutting costs – Munroe’s job would have ended shortly anyway.
Here’s what the judge had to say:
Over less than two years, the company would shrink from about 31 employees to about 17. In January 2009, other individuals were being laid off or experiencing significant salary reductions. Further, the team on which the applicant worked was in the process of winding down the work with its major client. The work to which the applicant would have returned was not continuing, but was anticipated to come to an end. In the context of these specific circumstances, it would not be reasonable to expect the company to have brought the applicant back as an additional person on its payroll for a period of re-orientation, for the purpose of delaying a decision on layoffs until later.
The judge sided with the company and agreed that it had no duty to accommodate Monroe due to undue hardship based on cost.
ADGA Group Consultants Inc. v. Lane et al., 2008 CanLII 39605 (ONSCDC)
Lane was diagnosed with bipolar disorder, characterized by manic and depressive episodes with periods of stability. Lane applied for and was hired by ADGA as a software program tester without revealing his diagnosis. Once at work, Lane disclosed his diagnosis to a supervisor and told her how to identify when he was becoming manic and asked her to interfere if she observed any inappropriate behaviour. Ten days after starting work, Lane was dismissed from his job for having misrepresented his ability to do the duties of the job. As a result of the job loss, Lane went into a full blown manic episode, was hospitalized, then his condition turned depressive as a result of the financial burden of job loss and his marriage ended up breaking up. The employer was dismissive of their obligation towards Lane and tried to justify its lack of accommodation by arguing that Lane was a health and safety risk, that the supervisor was not able to watch Lane at all times, and that his manic/depressive episodes could lead to a national security issue if he told others classified information ADGA entrusted him with.
The Human Rights Tribunal disagreed. They said that Lane was fully capable of performing the job but had a disability and found that ADGA did not meet its procedural duty of accommodating Lane’s disability and awarded Lane $35,000 in general damages and $10,000 as damages for mental anguish and ~$34,000 in special damages for loss of salary. The tribunal also said that undue hardship cannot be established by relying on “impressionistic or anecdotal evidence or after-the-fact justifications”.
As you can see, it is open to an employer to argue that they would face undue hardship under one of the three heads enumerated in the Human Rights Code, but the success of the argument will depend in each individual case based on the circumstances.
If you are unsure about if or how to accommodate an employee, be sure to contact us and we can help to guide you through the process of accommodation.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you have any questions about the OHSA, need advice about your obligations as an employer, or need help coming up with and implementing the new harassment policy, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or firstname.lastname@example.org.
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Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or firstname.lastname@example.org.
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David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.