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Court Finds Abandonment For Failure To Return To Work Or Provide Medical

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Disability management is a challenging issue for HR professionals. An employee with a disability may require an extended absence from work due to their medical condition. Where an employer provides disability benefits, the employee will be required to show that they meet the definition of disability under the insurance policy, which will require the disclosure of medical information. A recent decision from the Ontario Superior Court addresses the issue of when an employee is considered to have abandoned their employment where they fail to comply with requests for medical information and also refuse to return to work.

In Betts v IBM Canada Ltd., the plaintiff had been employed by IBM Canada for 15 years. He suffered from depression and was absent from work as a result of his illness. His employer advised him of the process to apply for disability benefits, which were administered under a policy with Manulife Financial. The employee had applied and been approved for disability benefits in the past.

The employee worked and resided in New Brunswick. He moved to Mississauga in order to live with his fiancée. This move occurred while he was applying for disability benefits. He did not notify his employer or the insurance company of the move. Under the terms of the policy, he was required to seek approval from the insurance company case manager prior to a change in place of residence.

Despite being instructed as to the necessary steps for his disability benefits application, the employee failed to provide the necessary documentation within the timeframes outlined in the policy, and his claim was denied. He was provided with a further opportunity to submit the necessary medical information. He submitted documentation prepared by a psychologist in Mississauga who starting treating him after his move from New Brunswick. However, the policy required medical information from a physician, and his application again was denied.

Over the course of the next several months, the employee appealed the denial of benefits. However, despite being granted extensions and being warned by his employer of the consequences for non-compliance, his failure to comply continued. The employer provided the employee with one last chance to submit the required medical information. The employer made it clear that if he failed to provide the medical information or return to work, he would be held to have voluntarily resigned. The employee failed to comply and the employer took the position that he had resigned.

The case was heard on a summary judgment motion. The Court found that the employee had abandoned his employment. The employee had failed to return to work for a period of over eight months despite repeated warnings from his employer and requests for medical documentation as required under the policy. The Court also took into account the employee's voluntary and undisclosed relocation to Mississauga, as indicating an intention to abandon his employment in New Brunswick.

The Court noted that employees who suffer from medical issues are not immune to being found to have abandoned employment. The employee provided no evidence that his medical condition precluded him from complying with the requirements under the policy. He received multiple opportunities to provide medical documentation as well as multiple warnings of the consequences of a failure to comply.

Interestingly, the court found that the employer did not have an independent duty to accommodate the employee over and above the terms of the insurance policy. However, this finding needs to be taken in context. The issue in dispute was whether the employee had abandoned his employment. The employee withdrew his claim for damages under the Human Rights Code prior to the hearing. Employers that offer disability benefits through a third party insurance provider still have a duty to accommodate to the point of undue hardship, and cannot rely solely on the findings of the insurance company.

Disability management can be a minefield for employers. The fact that the employer in this case provided the employee with multiple warnings and opportunities to comply with the requests for medical information was key to its success. Employers will sometimes be required to tolerate extended periods of employee absence. However, employers are entitled to reasonable medical information to substantiate an absence. As this case shows, repeated failure to comply on the part of the employee can result in a finding of abandonment.

Note: This a reprint of an article by Stringer LLP.


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