Craig: Good morning, everyone. Before we begin we just want to acknowledge that Ottawa is built on unceded Algonquin Anishinabe Territory. The Peoples of the Algonquin Anishinabe Nation have lived on this Territory for millennium. Their culture and presence have nurtured and continue to nurture this land. Gowling WLG honours the Peoples and land of the Algonquin Anishinabe Nation. Gowling WLG honours all First Nations, Inuit and Metis Peoples and their valuable past and present contributions to this land. In conclusion we want each of you to individually reflect and acknowledge the traditional land that you are currently on as well. We also want to encourage, before we begin, everyone to reflect on the importance of today. September 30 is the National Day for Truth and Reconciliation. The National Day for Truth and Reconciliation is a Federal statutory holiday that gives the public a chance to recognize and commemorate the inter-generational harm that Residential Schools have caused to Indigenous families and communities and to honour those who have been affected by this injustice. The National Day for Truth and Reconciliation responds to call to action 80 from the Truth and Reconciliation Commission of Canada calls to action which reads, "We call upon the Federal Government in collaboration with Aboriginal Peoples to establish as a statutory holiday a national day for truth and reconciliation to honour survivors, their families and communities and assure that the public commemoration of the history and legacy of Residential Schools remains a vital component of the reconciliation process. September 30 is also Orange Shirt Day. The annual Orange Shirt Day, on September 30, opens the door to global conversations on all aspects of Residential Schools. It is an opportunity to create meaningful discussion about the effects of Residential Schools and the legacy they have left behind. A discussion all Canadians could tune into and create bridges with each other for reconciliation. A day for survivors to be reaffirmed that they matter and so do those that have been affected. Every child matters, even if they are an adult from now on. Orange Shirt Day invites Canadians to wear orange shirts on September 30, each year, to honour survivors of Residential Schools, their families and their communities. The Orange Shirt Day website has a page or resources for anyone looking to organize Orange Shirt Day at their school or work. Gowling WLG Canada is council to the Orange Shirt Day Society, representing them on a pro bono basis. Thanks and I'll turn it to over Elisa.
Elisa: Okay. I think we'll get started and we will just let more people join, slowly but surely. My name's Elisa Scali. I am a partner with Gowling WLG, practicing with the Employment, Labour and Equalities group. I'd like to welcome you today to our fourth webinar which is part of our six part webinar series that is being presented by the Employment, Labour and Equalities group. If you missed our prior seminars, or webinars, they will be posted in the chat today so that you can click on the link and view the recorded webinars. The topic for today's webinar is Managing Disabilities in the Workplace. Our speakers today are Craig Stehr, Melissa Roth and Jordan Epstein. Craig's a partner in our Ottawa office. Melissa is a partner working out of our Waterloo office and Jordan is an associate in our Toronto office. All of our speakers are members of our ELE group and, of course, have practices focusing on employment law, all aspects of employment law and the employment relationship from recruitment to terminations and accommodation workplace safety. I want to share with you, you all know that they're employment lawyers, I want to share with you some facts about them that you may not know. So before the webinar I asked them, our speakers, if you weren't practicing as a lawyer what would be your dream job. Melissa basically said that she loves working with people, which is great for her practice, and she loves finding solutions for people but instead of finding legal solutions she'd love to be an interior designer so she could use her creative side and find solutions for people's living space. Jordan likes to dream big. He'd love to be the GM for the Toronto Raptors. He's a little bit disappointed that he didn't get a chance to interview for the job but he acknowledged that the current GM is probably more qualified than he would be. Now Craig, he would like to trade his office for a cabin in Algonquin Park and become a park ranger. He'd like to keep the beasts in order in the back country and mediate disputes among the squirrels and the bears and I would like Craig to come to my home and try to deal with the squirrels that keep eating all my nuts in my oak tree and ruining my lawn. So, Craig, if you would like a part-time job I'd like you to come over and help me with that. I'd like to get this started and I'm going to turn it over to Jordan.
Jordan: Thank you, Elisa, for the intro and the embarrassing reminder that I'll never make it to my dream job. Thank you all for joining us today. The topic of today's webinar, as you know, is Managing Disabilities in the Workplace. My colleagues and I will discuss the legal framework, the duty to accommodate, managing employee medical notes and the doctrine of frustration of contracts in the employment context. Please feel free to send in any questions using the chat feature in Zoom. We'll do our best to answer the questions throughout the session. There'll also be some time at the conclusion of the presentation for some Q&A and discussion. The purpose of these introductory statistics is to demonstrate that disabilities in the workplace are not only relevant but prevalent. Disability management is a critically important area of human resources that all employers must deal with, regardless of the size of the company. Naturally, larger employers will likely encounter more disability related issues but the same tools, approach and legal obligations apply to any employee disability situation. These stats further demonstrate the prevalence of disabilities in the Canadian workforce, particularly regarding mental health issues. Now mental health related disability can be a very challenging area for employers to manage. While certain physical disabilities might have common workplace accommodations or injury recovery times. Mental health issues can be complex and difficult for third parties to understand. Throughout today's presentation my colleagues and I will explain that employers have a legal duty to properly accommodate and manage employee disability leaves. Failure to manage disability can result in serious financial consequences and potential liability, including damages for violating human rights legislations.
When we speak about disability management there are really four sources of law that employers ought to be aware of. The first is human rights legislation. Each Province and Territory has its own human rights statute. Here in Ontario we have the Ontario Human Rights Code. If a company is federally regulated it is governed by the Canadian Human Rights Act. The human rights legislations in each jurisdiction are quite similar. They're based on the underlying requirements of the Canadian Charter of Rights and Freedoms and the fundamental principles that have emerged from the Supreme Court of Canada. Our session today will be largely focused on Ontario law, however, the majority of these concepts and principles applies to all jurisdictions. Second, an employment contract, employment policy manual or a collective bargaining agreement might set out particular ways to deal with disabilities and sick leaves. If there is a particular internal policy, regarding sick leaves, employers should first consider that policy before responding to a disability scenario. All jurisdictions have workplace safety and insurance legislation. These deal with the collection of insurance premiums from employers to protect employees from financial hardship in the event of their workplace injury. When an employee's disability is caused by workplace injury the applicable workplace safety and insurance legislation might apply. Finally, each Province has employment standards legislation which includes various leaves that may be applicable in the case of disability. In Ontario, for example, the Employment Standards Act allows an employee to take a leave of absence without pay because of personal illness, injury or medical emergency.
In today's presentation we're going to focus our discussion on the first bullet that we just saw which is human rights law, as informed by the human rights legislation and case law. With that I'm going to hand things over to my colleague, Melissa Roth, who will discuss the duty to accommodate.
Melissa: Good morning, everyone. Thank you very much, Jordan. Let's talk about accommodation now. As Jordan mentioned when we are looking at accommodation we have to start, when we get a request for accommodation, we have to start by considering that framework that he just mentioned. We're framed by the ones that we have under the applicable human rights legislation, in Ontario this being the Human Rights Code, and as you can see here the reason for that is because disability is one of the protected grounds under the Code. We're also going to have to look at the contract, the collective agreement, the policies, see if there's any specific guidelines with respect to how we're going to deal with those accommodation requests and, obviously with workplace injuries we're dealing with WSIB, and we also can't forget that there are employment standards legislations, we may have to provide a specific job protected leaves for certain leaves related to disabilities. Now that we know that there are quite a few things to consider, and knowing that disabilities are protected ground under the Code, those that should be sufficient encouragements, if not because we should care about accommodating disabilities, it's also because this involves liability. Anything involving the Human Rights Code, and such statutes as we mentioned before, is going to come with a potential for liability. On the slide there you can see all of the protected grounds but we're only going to focus with respect to accommodation of disabilities.
We know that we have to accommodate disabilities and their human rights legislation but sometimes it is not clear for employers what is and what is not a disability. Be warned that disability is defined very broadly in the human rights legislation. For instance under the Ontario Human Rights Code section 10 of the Code defines disability as any degree of physical disability, infirmity, malformation, disfigurement that is caused by bodily injury, birth defects or illness. Then goes on to give examples. It is important to understand here that it can be caused by bodily injury. I once had a client who asked me, "Why do I have to accommodate someone's stupidity when they think that they can just lift the fridge on their own up the stairs in their apartment?" Well, if that causes a disability then that is something that the employer has to accommodate. The section 10 of the Ontario Human Rights code goes on to define disabilities as a condition of mental impairment or a developmental disability, a learning disability, a mental disorder or an injury or disability for which benefits were claimed or received under the Workplace Safety and Insurance Act. Also remember that disability includes perceived disabilities. This would apply where a person does not currently have a disability but they're treated adversely because of a perception that they do, or will eventually develop a disability, and become a burden or pose a risk or require accommodation.
What does an employer need to do to engage in the accommodation process? There is the what and the how and these two are the two components of the duty to accommodate. The duty to accommodate includes a substantive component which means that we ultimately get it right. That we implement the right accommodation strategy. Then there's also a procedural component. How did we get to where we have to get to? Where we need to get to. The procedural duty to accommodate is often harder to meet than the substantive component. Employers often fail, either completely or partially, in the procedural aspect of the duty to accommodate because they haven't engaged in the process and documented that process appropriately. Damages can be awarded for failure to meet the procedural duty. So the process is just as important as the outcome.
When is the employer's duty triggered? Do we have to wait for them the employee to ask for accommodation? The answer is sometimes but at some other times it is obvious that an employee needs accommodation and we can't turn a blind eye to it. For instance, if I'm an exemplary employee, my attendance is fantastic, I come to work with proper hygiene and attire and I'm wearing my uniform everyday, and I treat my colleagues respectfully, and all of a sudden this changes. I start to miss every Monday. I start to come into work late. I start to randomly miss days. I start to not have good relationships with my coworkers. I stop taking care of my personal appearance, perhaps coming into work disheveled. Someone might know in my group that I'm having problems at home. Perhaps I'm going through a difficult divorce. Those types of things are the types of things that the employer needs to pay attention to because those drastic changes may be indicative of some non-visible disability. I may be going through depression. I may be suffering from alcoholism. So those are the type of things that employer's can't turn a blind eye to when the warning signs are there.
What are the threshold requirements to trigger the duty to accommodate? Well the employee, or in some cases when we're dealing with interviews, the candidate for a position has a disability there are reasonable grounds to believe that the employee or the candidate suffers, or could suffer, an adverse affect as a result of work requirements or employer actions or inactions. The disability is a factor in that adverse treatment and the employer knows, or ought to have known, this is the not turning a blind eye, that accommodations are or may be required or requested. By the way, if we suspect a disability we cannot get out of liability by simply acting, quote/unquote, before the employee makes a formal request. By acting we mean, for instance, imposing an adverse affect such as termination or other discipline. If we do that before the employee makes a formal request for accommodation, such that we're trying to avoid that accommodation request and engage them in the process, that still attracts liability. So the search for accommodation is more of an art than a science but much like a science we still have to document every step that we take. I cannot emphasize enough how important documentation is in the process and you will see this being raised by my colleagues in their sections as well. We have to look at the disability related needs and we have to then make meaningful inquiry as to what vacant positions, if any, the employee can perform the essential duties of. Of course we always start with the employee's own position but sometimes that's not an option. So first we have to identify what are those essential duties. Then we have to think are there any defenses related to, for instance, a bona fide occupational requirement. Quite possibly there might be. A bona fide occupational requirement is a standard or rule or a factor that is essential to performing the duties of the particular position. For example, it may be a bona fide occupation requirement to have the ability to lift a certain weight to work as a construction worker. So those are the type of things that we have to start with.
Remember accommodation is not about lowering standards and that's why in the previous slide I mentioned essential duties. Accommodation is about implementing the necessary modifications that allow the employee to perform the essential duties of their own position, or a vacant position that the employee is qualified to perform, if they cannot perform their own position. We always start with the employees own position. Then we look at other positions in the same department, for those employers who are larger, and then we still have to look at other departments, the other areas. The larger the employer is the harder it will be to claim that we can't find proper accommodation, usually.
We have talked about what you have to do as an employer but as important is what you're not required to do. For the most part accommodation will not require an employer to engage in make work projects, however, we also have to look at whether the accommodation is permanent or temporary. An adjudicator will expect a little more from an employer, and perhaps will expect that an employer will be able to cobble together some duties for an accommodation that is temporary, but not really if the accommodation is permanent. As mentioned before if the employee's own position is not an option then we look at other positions. But ultimately the employee must be able to perform work of productive value to the employer. We have to look at what positions are available, or vacant, that the employee can perform that are within their restrictions and limitations and that the employee is qualified to perform based on their experience and qualifications. It is important to understand that when we say an available or vacant position this means that you don't have to displace others. You don't have to kick someone out of their position in order to accommodate an employee, however, if there's a union then adjudicators have found that as part of a unions duty to cooperate in the accommodation process they may need to ease up on the enforcement of the seniority provisions in the collective agreement. Also remember that while sometimes the accommodation that is provided to an employee may include absence from work. The human rights protections that the employee is entitled to continue when the employee returns to work, whether the return to work is with or without accommodation in the same position or a different position. There is also a protection against reprisal after the employee has exercised the rights under the legislation and this is based on the applicable human rights legislation that we would be dealing with.
Now we have talked about the employer's duty to accommodate but this is a multi-party process and all workplace parties play a role and must cooperate in the accommodation process. So that means that the employer has a duty, the employee has a duty and the union has a duty if there is one. Employees are not entitled to perfect accommodation or their preferred method of accommodation. They are only entitled to reasonable accommodation. Employees are not entitled to dictate what they think the accommodations should be. This doesn't mean that the employer should not listen to the suggestion that the employees have, which would be part of the procedural duty to accommodate, but at the end of the day it is the employer that determines the appropriate accommodation process. We must be very careful, and Craig will talk about this, to not allow a doctor dictate the accommodation that an employee needs. The doctor has to tell us what the restrictions and limitations are. The doctor needs to tell us the disability related needs and the employer determines the accommodation. Employees have to provide the necessary and important information for the employer to be able to accommodate and to assess the appropriate accommodation. Where usually not entitled to a diagnosis, although in some cases a diagnosis may be required as part of the understanding of the situation, but we are entitled to a prognosis. We are entitled to restrictions and limitations among other things.
Having noted that this is a multi-party inquiry, as an employer you have a lot of obligations under human rights legislation with respect to accommodation. In summary this slide will tell you again what those obligations are. We're going to determine first if the employee requires accommodation. If the employee does not require accommodation then the inquiry ends there. Then we have to meaningfully consider possible accommodations including anything that the employee may suggest but also including anything that we think is feasible. We're going to have respond within a reasonable time and discuss the options with the employee. Sometimes either the collective agreement or a contract or a policy will set out the guidelines that the employer has to follow in responding to those accommodation requests. That's where it's very important that when you get an accommodation request you look at your policy, you look at your collective agreement. Where I'm going to have to maintain confidentiality to the extent that is feasible. If we don't have a separate department where the information is held when we receive confidential personal health information, then we have to ensure that human resources maintains that information, and they're either a sealed envelope or password encrypted and that all that is communicated to management is only what is necessary to implement the accommodation. We're also going to have to make sure that we communicate enough to management so that management knows that this employee requires certain accommodation. We're going to have to request medical information and updates if we're dealing with a lengthy period of accommodation. We're going to have to explain to the employee why certain accommodations are possible. Why perhaps their preferred method of accommodation is not viable or not feasible, and what alternatives we're offering, and it is so important to document every aspect of your accommodation process because that is what proves that you have engaged in the procedural duty to accommodate. You're going to have to prepare a written accommodation plan. In Ontario this is required under the AODA as well. We're going to have to implement that plan and follow that plan and that requires follow up with the floor usually. With those who are in direct contact with the employee. Lastly, we're going to have to keep in mind that this is a very flexible process and that we're going to have to modify accommodations or adjust them as needed. Having said all this employers often ask, "Do I have to do this?" or "Do I have to do that? Is that not undue hardship?" So let's talk about undue hardship next.
Undue hardship is a very difficult defense to prove. Be prepared to disclose a lot of information if you will try to claim undue hardship. Also the larger the employer is the harder it will be to prove undue hardship. There will have to be objective, real and quantifiable elements with respect to the undue hardship that you're claiming. If we're dealing with financial claim of undue hardship we're going to have to disclose a lot of financial information ... Overall the advice would be that you should always consult with your counsel before trying to take the approach of undue hardship. You really don't want to get this wrong. The next case that I will cover, which some of you might have already seen, will serve as a cautionary tale regarding accommodation.
You might already heard of this case because it is an oldie but a goodie but I want to briefly go over this case from a few years ago. The damages in this case were over half a million dollars and that was for failure to accommodate. So let's just go over it quickly. The Human Rights Tribunal of Ontario, in Hamilton-Wentworth with District School Board and Fair released its decision with respect to liability in February of 2012. Then the decision on remedy came in 2013 and then the Court of Appeal essentially was the last one to rule on this case and upheld all of the Tribunal remedies that were ordered. The Tribunal, due to a failure to accommodate, reinstated the employee to suitable alternative employment. Then had the applicant calculate the lost wages from June 26, 2003 until the date of reinstatement which was in 2012 and the amount was almost $450,000.00. There was also reinstatement of the applicant's years of service with OMERS and the employer had to pay the pension contributions and additional costs associated with the buy-back of the pensionable time and service. The employer had to remit retroactive CPP payments or compensate the applicant for any losses arising from the loss of CPP pension contributions. The employer had to pay the applicant for out of pocket medical and dental benefit expenses that the employee would have had during this very lengthy period of no employment. They also calculated the additional tax consequences flowing from the money owing as a result of the decision and the employer had to also compensate the applicant for that additional cost. There were $30,000.00 in pain and suffering and general damages for injury to dignity, feelings and self-respect. There was pre and post judgment interest and ultimately they ended up with an award of almost half a million dollars. In this case the employee was a supervisor before for the School Board and the employee was dealing with regulated substance, asbestos. The employee had developed a generalized anxiety disorder for which he was hospitalized and that's when the search for accommodation started. The employee several times requested to return to work and the School Board can identify any suitable position for the employee and ended up terminating her employment. The Tribunal concluded that the School Board had failed to actively, promptly and diligently canvas possible solutions to the applicant's need for accommodation. When you look at the issues that the Tribunal identified it is a very important case to highlight. The importance of the procedural duty to accommodate. You have the details on the slide. I will not go over it. Some of you might have heard of it but ultimately the point here is that if we don't care about accommodation because we have to, then we have to care about accommodation because it can attract amount of liability. I will leave it to Craig now to discuss disability management and doctor's notes.
Craig: Thanks, Melissa. So we're going to move onto the issue of disability management and it really does go hand and hand with what Melissa has just covered off dealing with accommodation. It's really sort an adjunct to that and it's an issue that many of you have had to deal with. It's always a challenging issue. I think some of the most challenging questions that we get from clients are inevitably in this space. I think that's my first comment. The second comment is that the stakes are sometimes, and maybe often, relatively high for the organization itself, to be able to manage its interests, but also for the employee that is affected and that is requiring the accommodation for disability purposes. How we manage the disability accommodation often is a bit of a tightrope act. Finding the right balance. Finding the right interests and identifying those interests dealing with them in an efficient manner. It could be even more challenging depending on the nature of the disability. Of course we're looking at physical and psychological mental health disabilities, and sometimes you may be dealing with an employer trying to assist that employee, and the employee themselves may not be fully aware of what their own interests are during that process. It really is a delicate process in many instances that requires a fair amount of care. A fair amount of guidance and it can be tough, inevitably, to get it right. But we do our best with these issues and so we'll cover off for the next few minutes here is sort of our best recommendation as to how to deal with these issues when they arise.
Looking at disability management, just to start, you'd say there's no hard and fast rules. We would suggest really you need to ensure that there is a flexible process in place. Similar to that there's no case by case one answer as to how to deal with disability management in one case to another. Each case needs an individualized approach. So it's best to sit down, once you're aware that this is a live issue that needs to be managed, to sit down, put your mind to what does this case really require. What are the interests at play? Both the employees interests, organizational interests and of course legal interests. It requires patience, and those of you who have dealt with disability management certainly will know that this is maybe self-evident, but certainly to the point the process is often very long and requires the management of difficult issues. You're dealing with doctors. You're dealing with an employee who they themselves might be getting quite frustrated in the midst of the process in terms of how long it's taking and they may not always agree with the approach that the organization, their employer, the company wants to take in a given situation. Take note it of course requires a ton of patience and to that I would add, of course if you're an unionized workplace this may require an additional level of patience when you're dealing with the union. Certainly the union does have a role to play, as Melissa outlined, in disability management and what I always try to find is whether there is, and depending on the relationship with the union, there may be the possibility to rely on the union as a bit of an ally in the process. Sometimes the union leadership will have a good sense as to what's happening on the ground. I mean of course the company will have a sense of that, but sometimes the union will have a different perspective on some of the interests that may need to be managed as well, sort of at the employee level with their membership when you're looking at implementing certain solutions as a part of disability management.
Another item to note is document, document, document. Keep excellent records of the discussions, not just the decisions, but the discussions related to sort of the exploration in the accommodation process. The exploration of the possible solutions here. Make sure that you keep a good record of what options have been canvassed and then ultimately what decisions have been proposed and made with respect to a particular employee. So these cases do require a high degree of diligence when you're proceeding with this. So why? Why do we want to implement an individualized process? Why should you be exhibiting patience? Why do we need to get this right? Well, it's the right thing to do. Morally it is the right thing to do. We want to ensure that we are removing barriers from employment for those with disabilities. We want to ensure that those with disabilities are able to meaningfully engage the workplace. So it's just the right thing to do. It's legally required. So if the first option isn't enough, it probably is for all of us, but if it weren't well, it's legally required. There really aren't any options here. Lastly, and maybe tied to that second point, there's significant exposure if you get it wrong. These decisions, if they are taken hastily or without the proper care and attention we get this wrong, there can be some pretty significant financial exposure from a legal perspective when dealing with employees. Plus, just practically speaking, if we have a process that is managed well arguably it helps get the employee back to work earlier or keeps the employee engaged in the workplace doing their work on a more frequent basis. That has financial implications as well for the organization, favourable financial implications.
Moving on. Those of you that have attended one of our webinars on this topic may be familiar with this slide. It's one of my favourite ones to point out. It applies, I would suggest also to accommodation, but I think it has particular application here when we're talking about disability management. When these issues first pop up it's best to keep in mind stop, drop and roll. You don't want to play doctor or jury but you do want to play defense. We'll talk about medical notes in a moment but you want to be careful in how you manage the request and the receipt and sort of the assessment of medical notes from doctors. I'm not medically trained. Many of us aren't medically trained. We're not in a position to stand in the shoes of a physician or a family doctor. So we do need to keep in mind we need to rely on the expertise where it's available even if it's from the employee's own doctor. That doesn't mean that you have to, as Melissa alluded, you don't have to accept just straight up what the doctor is saying. They do not get to dictate the terms that will apply to an employee who has a disability that needs to be accommodated and managed. Which, as I say, you can play defense. You can go back and press for more details. Make sure that you're getting the information that you need in order to facilitate the accommodation process, the disability management process. Next step there is to request up to date medical or other information. You can clarify. That's what I was saying. You can ask for, not to see follow up from the doctor, but you can ask for other medical information, if it would be applicable. You've got options. That's the next thing to keep in mind during this process. Canvass, identify, consider, assess, prioritize, test. You can look at and explore the options that would work in a particular situation. It's not one size fits all but certainly you do have options. Explore those options and reassess what's working and what's not, periodically. Participation. One thing that I always emphasize is it's not a decision that an organization should necessarily take on their own. It is a team sport so make sure that the employee is involved in the disability management process. If there's a union make sure they're engaged as well. Once you're working with all those considerations, the disability management process is rolling along, rinse and repeat. So keep following through on those steps we've identified there on D.R.O.P. For those of you that share my love of infomercials, this is not something that you can set it and forget it. It has to be and should be reassessed on an ongoing basis. Observe and adjust. Same thing. Log and document every step. So going back to document, document, document. Make sure that you are keeping good records, complete records of the discussions that are happening. As a part of that, of course, you have an obligation under the Accessibility for Ontarians Disabilities Act to maintain an individual accommodation plan. That plays a key role, in my view, in terms of managing this process because you are bringing the discussion to a focus point in that document as to who has what obligations, including the employee. What is their obligation within this process as well? Reflex and rigidity certainly are the enemies of accommodation and disability management. We want to ensure that we're adopting an approach that provides some flexibility and provides an openness to adjusting the plan when the current plan just isn't working. Sometimes, of course, that happens.
Medical notes. What do you do? I'm sure you've all seen this. A vague medical note. It's not an uncommon creature and so what can you do when you receive one? Consider what your objectives are and develop a strategy to deal with that. It's really easy to have a knee-jerk reaction. We all have them. I see many medical notes in my day to day practice and there are some that, inevitably, you look at and you're thinking, "Oh please." I'm sure everyone has had that reaction. That's not a constructive response so it's good to step back from that and really move away from the emotional response. Take a look at what exactly, again, what are those interests? What are the priorities? What do we need to know? Inform yourself. So ensure that in the medical note you're getting the information that you need that addresses the operational realities. Any information you need about the medical condition. These are all things that you should be looking to achieve through the medical notes. Maybe there's some information there that you're not understanding. Make sure that you do some due diligence to ensure that you're taking on the information that is actually in that medical note. Be patient. Sometimes it's a bit of a process to get the information from the right doctor or doctors. Always plan for the next step. So what do you need? What are you going to be using the medical noted for? Do keep that in mind.
Moving on to what the issues are. This is a good question when assessing the medical note, what is the issue that you're dealing with? Is it an accommodation request by an employee? Is it a request for repayment? This will depend on whether there's medical benefits that are offered to the employee. Is it about a return to work following an extended absence by the employee? Or is it a medical note that's been provided by the employee or by a union to justify excessive absenteeism or to justify misconduct. We'll often see these when we're dealing with a harassment situation in the workplace. You may see a medical note come to mat suggesting that there's an underlying condition that either perhaps mitigates the conduct or provides some explanation for it. If that's the case it needs to be considered, of course. Why are you receiving the medical note? What's the issue dealing with? Why are you receiving it? That all, I think, plays together, those factors in assessing what role the medical note plays in the accommodation or the disability management process. Then looking at the objectives. What are the issues you're dealing with? What is the organization, the corporate objective in terms of reviewing the medical note? Are you looking at parting ways with an employee? Here you sometimes get a sense that there may be a medical condition at play. You may have doubted the situation with a challenging employee. You're looking to sever the relationship but you may want to just be sure that there isn't an underlying issue that could create some human rights exposure. There are instances, and I would suggest legal counsel should be a part of these discussions, but there are some cases where you suspect there may be an underlying medical issue, perhaps an addiction, perhaps a mental health issue, and you're looking at whether or not you should be looking at accommodating and walking down the road of disability management, or whether it's not an issue and you want to sever the relationship. Sometimes you want to have a conversation with the employee, "Look. We've got this issue here. Either it's a medical issue, in which case we'll accommodate it, we'll put together a disability management plan if that's the issue or it's a performance issue. In which case there are other interests at play and potentially also termination." So that may be the objective of why you're asking for the medical information. You may also be looking to use the information and medical note for a safe or timely return to work. You may be looking to ensure that there's proper documentation obtained in the midst of a leave from their employment. You may be looking at adjudication for a disability claim. Or looking at preventing abuse or malingering behaviour within the workplace. Looking at the objective behind why you might be requesting the medical note or why you may be receiving the medical note, the medical note is probably going to look a little bit different depending on which of these objectives, or other objectives, that you have or the employee themselves have. When you're asking for a medical note from an employee, we don't suggest asking just for the sake of asking, you want to have a purpose and you want to be strategic. That goes to whether you want to request a note at one time, or to wait, and it also factors into what information you may be wanting to get from the employee's doctor.
With the information it's going to be dictated again sort of by what situation you are in but here are some items that you may be, or you are, able to ask for from an employee's doctor. Fitness to return to work. So if an employee has been away for a period of time and wants to come back, depending on the circumstances, in many circumstances you're going to want to ensure that the employee is fit to return to work. You don't need to rely on the fact that the leave period has just expired or the fact that an employee says, "Yes. I'm ready to come back. I feel great." I get asked this question, not infrequently, whether you can ask for clearance for return to work before letting the employee return and the answer is absolutely yes. So long as there's a reasonable basis for it and so you can get that information. It also helps you, as an organization, address any potential exposure or liability in the event that an individual wasn't ready to return to work, and sometimes there's some fallout when there's an early return, that I'm sure many of you have perhaps seen or had to have dealt with. So it's a good idea to get clearance from a medical doctor about the person's return to work. If there's absences, certainly, you want a medical note. Not for every absence I wouldn't suggest. I know the medical profession doesn't appreciate that and may push back against doctor's notes for absence justifications but in certain circumstances, it's the right thing, you're entitled to ask for that or for the confirmation of a disability. Also under disability management you need to understand what the condition is. So you may need some information yourself from the employee's doctor including what limitations there may be? What is the duration? Is this is a temporary disability or we are looking at something more long term? Always prognosis and what the treatment course is. Those are all things that you, as an employer, are entitled to ask for. But, again, we wouldn't suggest asking for all of these items in every case. It may not be appropriate. Customize the request for a medical note to the information that you actually do need.
More specifically, here are some dos. What can you ask for? The nature of the illness. Again, we ask the question, do you really need to know? In many cases absolutely you do. But you may not need to know in every case or at every instance of time within the disability management process. What's the expected duration? Restrictions or limitations? The functional limitations. That's usually an important question to ask. The opinion of the doctor. The opinion of the doctor as to what possible accommodations may fit the disability, might facilitate the employee's continued work or modification of work to do so. What is the basis for the medical conclusions? How did the doctor reach their conclusions? Was it a visit? Was there testing? What is the treatment plan for the employee and is the employee compliant? And there again, it's not always something that you'll need in order to be able to properly manage an employee's disability within the workplace, but sometimes it is. What is the extent or scope of the relationship? Is this, and I won't call out any specific clinics but I'm sure you all have them in your communities, separate clinics where the employee will come in and the doctor will issue a note no matter what the employee is asking for in some cases. Or is this a long term treatment relationship? That's going to be more important when we're dealing with more complex conditions of course. When was the employee seen by the doctor? That's probably a relevant question to make sure you're getting something that is up to date.
Don'ts. What can't you ask for? A diagnosis. We're not entitled to that. Now, sometimes there's a fine line between some of the information you are entitled to get in terms of what the requirements of accommodation are, often will disclose what the medical condition is but you can't ask for the diagnosis and so you shouldn't. What their mental health history is. In most cases when we're looking at disability management you won't be entitled to the medical records themselves or an independent medical evaluation. If there is a serious and ongoing condition, and it is requiring an ongoing disability management, it may become more important as time goes on if you're having issues with the medical information from the doctor to get an independent medical evaluation. Just because you can't, as an organization, just simply disagree with the doctor without your own medical opinion. Now, the employee can't be required to pay for that independent medical evaluation. If you want an IME the organization's going to have to pay for it.
Look at whether or not you need to actually ask for the information at any specific time. Can the objectives that you have for the disability and management process be met without having the employee provide a whole bunch of information from her doctor. Sometimes yes. I would say that although there may be some suspicion about whatever the employee may be saying about their own health, and what needs they have, I would encourage, again, to step back from the emotional whenever possible because an employee sometimes is an expert in their own medical condition. This doesn't mean you have to accept out right what the employee is saying but they're the ones that live with their disability condition. I do often recommend we listen to the employee. That may be the best information at the start of this process anyways. Consider whether or not you can take a more targeted approach when you are asking for the information from the doctor themselves.
There are some legal considerations that you'll have, of course. Do you need written consent? Are there contractual issues that you need to be aware of? There's a statutory framework, of course, so you need to look at each instance sort of what is the overall framework that guides your entitlement to information and some concerns. The best approach that we recommend in pretty much every case is send a letter to the employee. You always want to emphasize that we are doing this to facilitate the accommodation process and to support you and your quick return and engagement with the workplace. You want to focus on the positive. I like to say that in the beginning of the letter and I like to end with that at the end. Provide the letter to the employee. Letter to the treating physician and a authorization form for the release of the medical information.
Now with the doctor, you may get perhaps a medical note that's not all that helpful, that's a little bit vague. If that's the case you've got to ask sort of why. Why did we get a medical note back? We sent the letter. We thought it was clear but we got this medical note that's not particularly helpful or informative. Well, take a look at the information that you were requesting and the information you provided. Ask sort of what information was given to the doctor? Does the doctor have the full context? Does the doctor understand the work of the employee? I often like to include a description. If you don't have a job description, separate from what the employee was given at the outset, and many jobs won't have that, you want to include a description of the work that's current. Maybe that job description that does exist is a bit out of date. So you do want to make sure the doctor has the information they need to be able to provide you with a useful letter back that provides you with relevant information for the disability management process. If you have doubt about what the employee or the doctor is telling you, the less reasons you have for the doubt the less reason there is to push for more detail. Earlier on you may not need, if it's a short term absence due to disability, you may be able to for the early period of time rely on what information you do have and then sort of write them a scale progressively request more if the disability management process continues to move forward. If you have a good employee that is long term you may have less reasons to distrust what the employee is telling you. You may be more willing to provide a bit of patience, at least in the short term.
I just want to close off the disability management discussion on episodic disabilities. It's an issue that I personally don't think gets enough attention in these discussions and what we're looking at there is not those disabilities that take an employee out of commission for a lengthy period of time. There's many episodic disabilities. These are long term conditions that are characterized by general interruptions with periods of illness and disability. So unlike the permanent disability, an episodic disability, they're periodic. They're episodic. They come and they go. They vary in length. On the next side we provide some of the common. There's a much longer list of these, of course, but some of the common ones that I come into contact with in working with clients are here. Right from arthritis and asthma, HIV AIDS, diabetes and many mental health conditions would fall under this category of episodic disabilities. Just to close off on the next slide, these disabilities require an ongoing approach. We mentioned patience at the outset. These ones require a lot of patience, typically. Management and toleration of temporary absences, periodic absences, from work. Communication is absolutely essential and flexibility is as well. It's usually pretty unhelpful to request unnecessary medical notes for absolutely every absence if you know that you're dealing with an employee that has an episodic disability. Overall, it comes and it goes so sometimes that will breed some mistrust. Bob was fine a week ago and now all of a sudden he says he can't come into work. There may be a disability reason for that and so these disabilities, episodic disabilities, do require I think a lot of care. All disabilities of course do but particular care and attention and flexibility when dealing with these types of disabilities. Just as my final note here, what I would say is, when dealing with any kind of accommodation or disability management issues, try to keep in mind that yes, you're dealing with certain employees, and they may be challenging employees or them may be great employees, but at the end of the day it could be you or your loved one next week or the week after that's also dealing with these issues. So we always encourage, and I try to provide my advice in this context, that it does require a certain level of support and patience that we ourselves would want to see if we were in that position. So with that I'll turn it over to Jordan who will be speaking on frustration of contract.
Jordan: Thank you, Craig, and as you'll see in this topic of presentation a large portion of the discussion about frustration of contract dovetails in their requirements to get proper medical evidence. So part and parcel with what Craig has been discussing is key to properly manage these employee doctor's notes in order to ultimately get to a potential point where the employment contract is frustrated. Frustration of contract is often a frustrating legal concept for both employees and employers to grapple with. I'm going to explain what frustration is in the context of the employment relationship and what happens when an employment contract is frustrated. But first let's talk about the common law doctrine. Frustration of contract is a general common law concept. It occurs when a contractual agreement becomes legally or physically impossible to perform without fault on either party. When a contract is frustrated both parties are excused from their obligations under the contract. It's usually in rare, in extreme circumstances that a general commercial contract will be frustrated. When looking for examples of frustrations in contract law you think of the unusual hypothetical scenarios like a natural disaster, a fire or two in a rental building, or the death of a party. Now let's look at frustration in the employment context. At a basic level frustration of contract occurs when an employee cannot perform the job anymore to no fault of the employee or employer. In other words the employment relationship has become untenable due to a change of circumstances beyond the control of the parties. We most commonly see frustration of contract in employment as a result of employee disability. The disability can be unexpected and obviously beyond the control of either employee or employer. In this regard an employment contract is deemed frustrated if the employee has become totally disabled and there is no reasonable prospect of returning to work with a reasonable time. When an employment contract is deemed frustrated the employment relationship is considered terminated. Typically the employer does not need to provide the employee with illness or severance when the contract is frustrated for most business reasons. However, in Ontario where frustration of contract occurs due to injury or illness, the employer remains obligated to pay the employee's minimum statutory termination pay and/or severance pay in accordance with the Ontario Employment Standards Act. Similar to a note at the beginning of this presentation a lot of this discussion is Ontario centric, as are the case laws in other discussions, but generally speaking this could apply to other jurisdictions as well. But again, in Ontario, when an employment contract is frustrated the employee is entitled to only their ESA termination entitlements. Not their potential common law termination entitlements which are often, if not always, significantly higher than the ESA minimums. Now frustration of contract brings finality to a potentially lengthy disability leave. Instead of continuing to wait for months, or in some cases years, for an employee's health to improve the doctrine of frustration will allow the end of the employment relationship and allows both parties to move on with clarity. Thus, frustration of contract is a useful and financially advantageous remedy for employers faced with the situation of a lengthy medical leave. While a company is still required to pay some compensation upon frustration, the employee's statutory minimums are significantly less than an employee's common law entitlements. Frustration can be a very positive financial outcome for employer's to limit severance liability. This is particularly valuable for those long term employees who don't have updated employment contracts with enforceable termination provisions.
Let's take a look at some of the case law. Fraser v UBS is an often cited case regarding frustration of contract in the employment context. It provides for a relatively common fact pattern. Here we have a lengthy employment relationship of 20 years. Ms. Fraser, she was diagnosed with major depression and anxiety phobia. Legitimate disability. Her initial attempts at returning to work with modified duties after proper brief short term disability leaves were unsuccessful. Ms. Fraser commenced a long term disability leave that ultimately spanned 3 and a half years. The employer proceeded to terminate employment and payout Ms. Fraser's ESA minimums. In response Ms. Fraser brought a lawsuit for wrongful dismissal. In this case the court deemed that Ms. Fraser was permanently disabled and that her employment contract had been frustrated. In doing so the court reiterated the legal test. Frustration of contract occurs when there is no reasonable likelihood that the employee will be able to return to work within a reasonable time. In applying the test the court will take into account all facts known at the time of termination. In this case the employee did not provide with updated medical notes, did not attempt to return to work or provide any indication that she might be able to return to work in the future. There is no evidence that this employee was even receiving medical tools. The same legal test is applied to the consideration of all employment frustration cases. Here the evidence is key. Frustration will not occur if there's medical evidence that indicates the employee might be able to return to work in the near future. Even with modified duties. If there is evidence of the type the employer will be required to accommodate the employees return up to the point of undue hardship and cannot claim frustration.
Hoekstra v Rehability is an important recent case in the topic. Typically it's the employer that claims the employment relationship has been frustrated. However, this decision confirms that either party in a relationship can make that claim. This case concerned a medical leave of more than 3 years. The employee provided updated medical notes at different times during the leave. In January of 2016 the employee's doctor's note indicated that it was unlikely that the employee would be able to return to work. The employee's condition did not improve thereafter. In October 2016 the same doctor assessed that the employee will not return to work due to his medical condition. The plaintiff brought a lawsuit claiming frustration of contract and seeking his ESA termination entitlements. So this is interesting because it was the employee who took the first step here as opposed to the employer. In response the employer argued that there were insufficient medical evidence to support a finding of frustration, and that frustration requires an act of the employer, and it's not the employee who can make the first move. In deciding in the employee's favour the court stressed that frustration of contract occurs as a matter of law. Once the circumstances exist that have the effect of frustrating the terms of a contract the contract is deemed terminated. The courts decision here again relies on the same legal test as the prior case law. The contract of employment is frustrated when there is no reasonable likelihood of the employee being able to return to work within a reasonable time. The fact that a party to the employment contract takes the position that the contract has been frustrated, whether in support or defense of a claim, does not have the effect of deeming whether or not a contract is frustrated.
I now want to discuss how the length of a medical leave alone does not determine whether an employment contract has been frustrated. Here we have two different cases. One, where a lengthy leave did not amount to frustration and the other, where frustration was determined after a relatively short leave of absence. In the first decision the employee was absent from work for 5 years due to depression. However, despite the half decade length of time of the leave, the court found that there was no medical evidence that the employee was permanently disabled and no evidence that he would not be able to return to work. Now in coming to its decision the court also considered the nature of the large scale operation of the employer. In this case it was Costco. There was no basis to conclude that this employee's ongoing absence hurt the company in any meaningful way. As a result, continuing to accommodate him by allowing him to remain on leave did not constitute undue hardship, particularly when there was no evidence to indicate that the employee was not going to be able to come back to work at some time in the future.
In the second decision we have an employee who worked as a counsellor for children with physical handicaps and was required to physically lift the children, from time to time, as a major duty of his responsibilities. The employee underwent surgery and was unable to lift heavy things upon return. The employment contract here was deemed frustrated as he could no longer fulfill the job requirements. In this case the disability leave was only 18 months long.
So here are there these two cases to demonstrate that there is no hard and fast rule that a disability has to be any certain length of time in order of frustration of contract to be determined. Thus, the question for employers is not how long is the leave but rather the question is what is the medical prognosis? There's a common misconception in employment human resources management that a 2 year medical leave will lead to frustration. That is simply not true. This misunderstanding is largely based on the fact that many disability insurance claims stop providing LTB coverage after a disability leave of 2 years. This often leads to an employer either terminating the employment relationship or pressuring an employee to return to work. This is the wrong approach. The legal test is clear and is determined based on evidence. The evidence and facts of each case. There is no formula, no length of time that can be applied to all frustration cases. Each disability scenario must be assessed on its facts taking into consideration the surrounding context and the likelihood of the employee returning to work. The length of the disability leave is definitely one of the factors in determining if and when a contract is frustrated but it's not the only factor.
Here are some practical suggestions to help prevent you from being frustrated by frustration. For one, seek clarification of medical diagnosis at reasonable intervals. Employers should definitely ask for updates but don't overwhelm an employee for information requests. If the disability leave is with respect to a mental health problem sometimes overly frequent correspondence might have a negative impact on recovery. At the same time employers should be proactive. The longer you wait for updated medical evidence, the longer it might take for frustration of contract to take place. Remember, employment tenure continues to accrue when the employee is on disability leave. Therefore an employee's ESA termination entitlements will increase the longer the leave continues. Keep track of medical changes. Evidence is key here so if there's improvement over time, as per the doctor's notes provided, the trend might indicate that an employee will soon, or eventually, be able to return to work and that might not meet the frustration standard. The third note, or next note, echoes many of the things that Craig mentioned during his doctor's notes discussion. It's here it's of absolute importance to ask employees to have their doctor answer a direct question. Specifically, it's okay to ask the question, will this employee be able to return to work even with modified duties? If the doctor's note is vague or evasive ask a direct question. A direct answer might provide the clarity you need that will allow a company to make a decision. Finally, do not forget the about the duty to accommodate. If there's a way that an employee can return to work with accommodation human rights legislation requires employers to explore all avenues of accommodation. The employment contract cannot be frustrated if a reasonable accommodation would allow the employee to return to work. Above all else, proceed cautiously. A misstep can prove costly for companies. Improperly terminating the employment relationship under the false pretense of frustration can expose the company to lawsuits and unintended liability. So if there are a few takeaways from our message today, it's one, employers must accommodate an employee's disability up to the point of undue hardship. Two, strategic management of employee medical notes is key to handling the employee disability scenario and obtaining important medical evidence, and three, an employment contract will only be frustrated due to disability when there is no reasonable likelihood that an employee will return to work within a reasonable amount of time. Thank you. I think now we're going to turn the table to any further questions. We do note that there was a pretty lively dialogue in the Q&A section during our presentations here. We thank you for that. To the extent that there are any lingering questions we have the floor to pop in a question and you will get a live lawyer to answer.
Melissa: The one question that has been asked several times and we answered a couple and then we left it for the end is, what happens if the employee cannot perform the position that they were performing prior to the disability and the accommodation entails putting them in a new position with lower pay? Is that permissible. The answer is generally yes. There may be some provision that you have a look at when you're dealing with a collective agreement. There may be issues of red circling or things like that but overall an employer does not have to pay for work that is not performed. So if the appropriate accommodation, keep in mind appropriate accommodation requires you to put someone in a lower paying position, then you don't have to keep paying this person $35.00 an hour if they're doing the job of $20.00 an hour job. Having said this, we have to also make sure that we're not quickly going to that position as a way of reprising against this employee for enforcing their rights under the human rights code, and it has justifiable that the only way that we can accommodate this employee's disability related needs is by placing them in this lower paying position.
Craig: Yeah, what I would add to that is of course the employee, the company and a union, if one is there, they all have a role as Melissa covered off, to participate. An employee cannot dictate the terms of their own accommodation. They're not entitled to their ideal accommodation. It's a discussion and part of that discussion, part of the result of it, may be a change to some of the work, a change to their role and with that a change that's reflected in their position. There's a question that's come up in terms of an employee being away under a protected leave, a medical note has been provided, a doctor's certificate and then when it comes time for the employee to return after that leave expires, the employee goes missing in action. Not responding to a request for an update or a prognosis. You may phone the employee, and some of you I am sure have dealt with this, an employee picks up and then quickly and abruptly hangs up on you before you're able to get any information. So, in that situation, it's going to be a job abandonment, and of course, it depends. What I typically recommend is providing a lot of leeway to the employee, if it's possible. There's always practical interests that are at play here that may not provide you with the ability to be a bit patient here, but you want to provide lots of opportunity. If you don't what the employee's experiencing at that moment where they can't just respond. Outside of the example given by the question, if we're dealing with the return of an employee from a medical leave who has a mental health disability, there may be a disability related reason why the employee is responding or not responding in that fashion. What we typically recommend is you write to the employee, you may want to send it by registered mail to make sure its gets to the employee, and set out it. Look, your leave was scheduled to end on this at this particular time. We haven't heard from you. Or we need a medical update. We don't have that information. You're not responsive. We need to hear from you within, give them 2 or 3 weeks to respond. When there's no response you want to rinse and repeat. You want to do it again and give that employee another opportunity. How many times you need to go through this depends on your typical HR approach, but I usually recommend going through it at least 3 or 4 times. You want to say the last or second last time, if we do not receive a response from you we will consider you to have abandoned your position. You want to give them the final opportunity to come back and then I usually recommend, this is my approach, give them the final, final caution that their employment will be considered to be abandoned. If that's gone on for a period of weeks, if you're in a position organizationally, to give that length of time you're in a stronger position to support a job abandonment.
Jordan: That's an excellent answer, Craig, and I'll echo that it kind of speaks to a lot of what we're speaking about today which is the necessity to generate a documentary record of those accommodation requests. Paper records as much as possible because those letters and correspondence could very well become the evidentiary record for a trial or human rights hearing. The better job you do as companies of documenting your correspondence the more evidentiary support you'll have in the event of a potential dispute.
Craig: Another question that has come up, this time in a unionized context which probably complicates the scenario, but many of you have probably dealt with this and we've seen similar questions in the Q&A during the webinar so far is, what if you have an employee that requires presumably disability management or accommodations on a leave that is the only one in that role and that the repeated ongoing absence has caused us a bit of a struggle for the organization. If you're in a unionized workplace, well of course you have pay scales that would apply, and you would have seniority provision that would dictate how you deal with that role. So how do you deal with that when someone is stepping into the role to take on the duties that are being left behind? In an unionized workplace I always say if it's possible try to engage the union as an ally. Now you may not have that kind of relationship with the union but when you do it can provide you with a bit of cover. Sometimes the union can be effective at managing the worker expectations on the floor as well. But basically if you have a unionized workplace go to the collective agreement. It will dictate of you fill roles, who goes into which role when one becomes absent and that's really the best that you can do is find a way to temporarily manage this. If it goes on for a period of time at what point can you permanently fill a role? I would say there's risk anytime when you move to permanently fill a role when someone has been off on a leave, even an extended leave there's always some risk. But again, you're dealing with practical interests here as well and you need to balance those corporate interests, those practical concerns, in terms of dealing with role and can you staff a non-permanent role? Some of these positions are going to be very difficult to fill with a temporary person. So you need to balance those interests and assess the risks and we can always have those conversations.
Melissa: There was a follow up question with respect to the decrease in pay and the follow up question was along the lines of what if the employee feels that with the ... price can this be constructive dismissal? Ultimately you can't avoid the risk of an employee claiming constructive dismissal. What matters is what supports you have to defend your position. If you have medical that will support that the employee was unable to perform the essential duties of the position that they had before and that the only way for you to accommodate this employee was to put them in that lower paying position the risk of constructive dismissal should be over binding of constructive dismissal should be low to none. However, this is going to depend on all of the circumstances of the case, on the positions that you had available. If you have an available position that they can perform that pays similarly to what the employee was earning before, and you put them anyway in the $15.00 position, then that's going to be a problem. It's always going to depend on the circumstances but a properly taken step as part of accommodation should not give rise to a claim of constructive dismissal.
Craig: Now there is a question here about accommodating an employee who is in a full-time role and requests accommodation for 3 and a half days a week. So this seems like a specific situation that someone is dealing with. Dealing with in this case I guess family reasons, non-medical. This steers us away from sort of the health and medical accommodation, a family status obligation, a family status accommodation which has seen some development in the law over the last while. I'd be happy to get the thoughts of the other panelists on this but certainly what we're looking at is is there a relationship where there's a legal duty. That's really one of the first issues. So if it's child, typically yes. Then there's an assessment as to whether or not there's a need to adjust the work schedule to accommodate that family obligation that the employee has. What we've seen from the courts recently is that there is no obligation, maybe technically, no obligation for the employee to attempt to self-accommodate. That's one thing that recently I was still pushing as an idea that the employee should have to try to accommodate themselves prior to the employer being on the hook. What we've seen recently, and we'll see if it sticks, is that really that's not the proper approach in the eyes of the court when dealing with family status obligation and that there may be an obligation sooner. But I would still suggest there's an obligation to sit down with the employee to talk about what options are available, whether or not there's something that the employee can put into place, him or herself, to deal with this situation. But family status accommodation is certainly a challenging one and I think an evolving situation still over the last few years here. Melissa, Jordan, I don't know if you have anything else to add?
Melissa: No, absolutely that can be a seminar on it's own.
Craig: That's another 90 minutes.
Jordan: Family status accommodation request is a whole another different area of law that has it's own complexities. Quite frankly, I think we as in Gowling WLG will at some point in time host a similar webinar on that topic ...
Craig: There's one, I think we have time for one last question maybe here. There's a question about compensation for an employee who's being moved to another role, with a lesser pay rate as a part of accommodation, and whether or not there's a requirement to provide some sort of notice or grace period before the reduced pay hits, or whether it can be effective as soon as the employee is moved into that lesser paying role. I would say legally there's no obligation to provide any sort of a grace period. We might recommend doing that especially if this is an abrupt change. Sometimes in your discussion with the employee the role will be identified. You put together the individual accommodation plan, which is a requirement in Ontario, and recommended just generally as a good practice across the country. You say the change in position is going to be effective 30 days from now, or upon your return from leave in 30 days, 2 weeks, whatever the period. You want to give a bit of a runway so that people can adjust to the idea and start to make perhaps budgeting adjustments in their households as a result of the change. It's good practice if you can provide a bit of a runway, including if the employees in a position and you may keep their former pay and make it very clear that it's going to reduce at to the regular rate to that position at a certain point, at a specific point. You can certainly do that and I would suggest it's good practice. It's kind to the employee but there's no legal obligation to do that.
Elisa: So I think those are the questions and the answers for today so we'll conclude our webinar. Accommodation is definitely a complex and challenging issue to deal with and I'd like to thank Melissa, Craig and Jordan for a very informative session today. I'd like to also invite you to join our next webinar which will be held on October 28 and the topic for that webinar will be The State of the Law on Forfeiture Clauses and Termination Provisions. We hope you can join us and I hope you have a wonderful day.