THE QUESTION
My medical report stated, "Due to work-related stress, I recommend she work from home when possible or reduce hours ... 50 per cent." My employer reacted by applying reduced hours for six weeks and a corresponding wage cut of 50 per cent. They did not consult me. Accommodations could have been put in place at work before forcing me on leave. Can they take this action based on a doctor's recommendation, versus my ability to gauge what I need? I've never been more embarrassed and humiliated in my life.
THE FIRST ANSWER
Bill Howatt
Chief research and development officer of work force productivity, Morneau Shepell, Toronto
Your situation appears to be in conflict with the expectations for accommodations set by the Canadian Human Rights Commission, specifically around three key tenets for how employers are expected to facilitate an accommodation: maximize the individual's dignity, autonomy, privacy and integration into the workplace and the larger society; minimize discomfort or inconvenience; and address the individual's needs most rapidly.
It appears that the spirit of your accommodations was imposed in a way that had an unintended consequence with respect to finances, which only added to your level of stress. A lawyer is best equipped to provide you legal advice on what your employer can and cannot do.
Health-care providers supporting employees seeking accommodations are asked by employees to fill in paperwork sent from their employer. The purpose is to provide a medical reason and recommendations for what the employer can do. The employee and health-care provider should work together to decide what they're going to propose, be specific and evaluate the impact before sending it to the employer for consideration. These are then used by the employer to consider what they can do for the employee, including workplace accommodations.
It appears there may have been some miscommunication or misunderstanding around defining your specific expectations and needs. If your health-care provider had provided more guidance and made it clear that any recommendation suggested should not create financial hardship, it would have provided your employer with more parameters.
THE SECOND ANSWER
Daniel Lublin
Partner, Whitten & Lublin Employment & Labour Lawyers, Toronto
When you are off work for medical reasons, the employer need not pay your salary, unless it has a policy that requires it do so. Therefore, the issue is whether your employer is deliberately acting against your best interests by forcing you off work or whether it is simply following a doctor's orders.
If this was the recommendation from your employer's doctor and not your own, there certainly are grounds to challenge it. You have the right to have your own doctor independently assess your alleged medical limitations and assist in the process of determining whether and to what extent you are to required to work reduced hours or take time off.
However, if these are recommendations made by your own doctor and you feel the employer has not appropriately interpreted your doctor's recommendations, then you need to have your doctor provide a second letter clarifying his or her request. For example, it does not appear that the doctor put a six-week timeline anywhere in the note – so there is no reasonable basis for your employer to assert that you must take six weeks off.