Gather the proper information

Sometimes employees seeking accommodation supply doctor's notes that don't provide enough information. In these circumstances, Taylor often advises clients to ask the employee's treating doctor - always through the employee -_for more information or to fill out a functional abilities form. Employers can give the doctor a job description, describe the physical demands of the job, and provide ergonomic analysis so that he or she can comment meaningfully on the employee's limitations and suggest recommendations for accommodating the employee, she says.

Christopher Stewart, a partner at Stewart McKelvey in Moncton, also advises clients to be proactive when

on the receiving end of an overly vague doctor's note.

"Don't just take a doctor's note that says, 'Off for four months for medical reasons,' " he says. "Find out a little more detail; just what is necessary to make a fair determination about whether the duty to accommodate extends to the request that's being made."

Independent medical exams

If a doctor is unco-operative or continues to provide insufficient information, it may be time to require the employee to take part in an independent medical examination paid for by the employer, says Taylor.

In appropriate situations - especially when an employee is claiming an ongoing permanent impairment - Saxe often advises clients to send employees to a medical specialist with training in workplace issues for proper functional abilities testing, which costs roughly $1,000 (if it's a workplace injury, workers compensation pays for the testing).

"In order for employers to ensure the claim is legitimate, especially if they have concerns about legitimacy, . . . they need to make sure they get to the right medical facilities and get the right tests done.

"It sets a good example in the workplace that the employer is going to be helpful and assist those with legitimate claims, but is also going to sort out those who don't have legitimate claims and deal with them appropriately as well," he says. "So doing this right is productive for everybody."

Keep in mind, though, that the decision of whether to ask for more information should be made on a case-by-case basis, and employers should avoid automatically applying a policy or process to every case, says Michael Fitzgibbon, a partner at Borden Ladner Gervais LLP in Toronto. "Case law seems to suggest that accommodation is an individual exercise, not dictated by policy, necessarily," he says.

Last year, in British Columbia Teachers' Federation v. Surrey School District No. 36, an arbitrator ruled that the school board acted unreasonably when it wouldn't process a teacher's request for a reduced workload unless he supplied more information about his diagnosis, treatment, symptoms, and functional limitations, in addition to two medical certificates already supplied. In this case, the collective agreement allowed for a reduced workload with a standard form medical certificate.

In the majority of situations, the disability must be grounded in a medical impairment or medical condition, but not always, notes Taylor. For example, in Desormeaux v. Ottawa (City) in 2005, the Federal Court of Appeal reinstated a bus driver with back pay more than eight years after she was dismissed for missing 365 workdays over a nine-year period because of a host of disability-related ailments. The lack of a specialist's report to support the existence of migraine headaches, which accounted for 13 per cent of the absences, was not fatal to the finding of disability, says Taylor.

Forcing someone to deal with a disability

Employers must sometimes grapple with an employee they suspect has a disability but won't admit accommodation is required. This situation can arise when an employee has a drug or alcohol addiction or mental-health disability. While employers might be tempted to accept this at face value and proceed to deal with the employee in a disciplinary way, arbitrators and human-rights tribunals have determined that employers cannot look the other way and ignore clear signals that an employee has a disability, says Michael Coady, a partner at Harris & Company in Vancouver.

Employers can take some comfort in the fact that while it is the employers' responsibility - where possible or to the point of undue hardship - to find a solution to a request for accommodation, employees are also obligated to participate in the process and can be held accountable when they don't co-operate or are dishonest.

"If the employer makes a proposal for accommodation, which is a reasonable proposal for accommodation, then the employee has to be prepared to go along with it, even though it may not be a perfect solution from the employee's perspective," says Coady.

When an employee refuses or fails to participate, that can spell the end of their employment, says Saxe.

All this is new ground for many employers, and the list of dos and don'ts to consider when facing a request for accommodation is, most certainly, more exhaustive than this article. For the most part, employers want to do the right thing, says Saxe, but need advice.

"If I run a plant making widgets, I don't know whether a major depressive episode needs three weeks off work or 16 months off work," he says. "The inquiry I receive the most often is, 'Here is the situation, now what the heck am I supposed to do?' "