In District of Sparwoood v. CUPE, Local 2968 (P. Schafer Dismissal) (February 28, 2025), Arbitrator Ken Saunders upheld the just cause discharge of an employee who had been absent from work for over three years on a medical leave and failed to provide clear, current and credible medical evidence about his current and future ability to return to work, notwithstanding repeated requests.
Background facts
The Grievor was discharged for just cause as a result of non-culpable absenteeism after being on an unpaid medical leave of absence for approximately three years.
Following a determination by the long-term disability (LTD) benefit provider that the Grievor was disabled from performing the duties of any occupation and was not capable of returning to work in any capacity, the Employer advised the Grievor that it would be formalizing the end of the employment relationship.
The Grievor never disputed the benefit provider's conclusions or sought to appeal those conclusions or have them reviewed. In response to the decision to end his employment, the Grievor, however, advised that he disagreed with the Employer's assessment of his medical condition. He indicated that he might be able to return to work in some capacity with an accommodation. As a result of his communications, the Employer paused the process around the Grievor's dismissal to obtain additional medical evidence.
After five months of unsuccessful and repeated requests for medical evidence indicating that the Grievor could return to work, with or without an accommodation, in the reasonably foreseeable future, the Employer terminated his employment.
Decision
Arbitrator Saunders found the Grievor could not credibly explain why he represented himself as incapable of working in his interactions with the LTD benefit provider while maintaining that he was fit to return to work with the Employer.
In upholding the termination for just cause, Arbitrator Saunders applied the following test for determining whether non-culpable absenteeism was established:
- Was the Grievor's record of past absences excessive?
- Was there no reasonable expectation of a return to employment with satisfactory attendance in the foreseeable future, with or without an accommodation?
In applying this test, Arbitrator Saunders noted that where an employer has established that an employee's absences are excessive, the burden shifts to the employee to show "a good prognosis for improvement in the foreseeable future". In applying the test, the Arbitrator concluded that: (1) the Grievor's absence of over three years was excessive, and (2) he had not provided medical evidence supporting a return to work in the foreseeable future, with or without an accommodation.
Arbitrator Saunders made it clear that employees are expected to respond to reasonable requests for medical information supporting their absence and their prospect for a future return to work, with or without an accommodation.
Takeaways
Employers are entitled to clear, current and credible medical information regarding an employee's present and future ability to return to work, with or without an accommodation.
Where in spite of repeated employer requests, the employee fails to provide responsive medical information supporting a reasonable likelihood that he or she will be able to return to work, there may be the basis for just cause termination for non-culpable absenteeism.
Careful documentation of the employer's attempts to obtain medical information from the employee will help support the decision to discharge the employee for non-culpable absenteeism.
Originally published by LexisNexis Labour Notes Newsletter.
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