Howard Levitt and Hani Shamsi
We are frequently asked about an employer’s duty to accommodate employees with disabilities. Legally, employers must reasonably accommodate an employee’s physical or mental disability, as long as the cost and requirement to do it is within the employer’s means. But any workplace accommodation is a two-way street, requiring both parties to cooperate to fulfill their obligations. So what happens when an employee refuses to cooperate?
Refusing to cooperate in the accommodation process is a terminable offence. An adjudicator appointed by the Ministry of Labour recently upheld an employee’s termination with just cause, following the employee’s repeated refusals to cooperate with the employer’s efforts to accommodate his disability.
The individual most recently worked as a warehouse assistant for telecommunication company. He joined the company in 2007 and in 2013 injured his right ankle while working as a cable technician. Following a workers compensation claim, he returned to work within one month. He was later involved in a motor vehicle accident, re-injured his right ankle and was accommodated with work in the company’s warehouse. He completed a Functional Abilities Evaluation (FAE), indicating that his physical restrictions required he take microbreaks during work and was placed on modified duties accordingly.
He was then asked to attend an Independent Medical Exam (IME) to understand his current physical restrictions and how to continue accommodating him. The employee refused to participate in the IME, stating that the company had sufficient medical information. Following the company’s numerous requests and the employee’s repeated refusals to comply, the employee was terminated with just cause.
He then filed a complaint under the Canada Labour Code for unjust dismissal, a remedy for employees dismissed or constructively dismissed by federally regulated employers. An adjudicator determined that the employee unreasonably refused to participate in the IME. The adjudicator