Alberta worker said medical questions 'not necessary nor directly related to his job'
A worker wasn’t fired and he didn’t quit, despite a dispute over his status after he refused to provide medical information before returning from a medical leave, the Alberta Labour Relations Board (ALRB) has ruled.
The worker was a senior ceramist in the crown and bridges division of Centreline Dental Labs, a dental laboratory in Edmonton that makes and restores dental appliances. The worker started his employment in 2008 with an employment contract that defined the company’s specific address as the location of work “unless otherwise directed by the company.”
In late 2022, Centreline acquired a new dental lab with better equipment and commenced the process of moving to the new location. The company advised the worker of the move on Dec. 29, saying that it would be effective on Jan. 3, 2023. The worker was reluctant to move and expressed his displeasure, so he was taken to the new location to view it. The worker said that he accepted the move, but a short time later indicated that he was refusing to relocate.
On Jan. 4, the worker provided a medical note stating that he would be off work until Feb. 5 due to medical reasons. He provided additional medical notes on a monthly basis extending his medical leave to April 7.
On April 9, the worker informed Centreline by email that the work environment was becoming “increasingly stressful and toxic,” impacting his mental and physical health. He asked the company to investigate his concerns and “take appropriate action.”
Fitness for work
The next day, the worker reported for work. His manager wasn’t expecting him based on his medical leave and the email, so she asked him to leave, advising that he would be paid while on leave. She said the company needed a medical report indicating that he was fit to return to work. She was also concerned about the health and safety of the worker and other employees and didn’t want things to escalate.
According to the worker, the manager told him there was no work for him. He emailed his manager and the executive chair requesting written confirmation of his “early termination” and the reason. Centreline responded by advising that, given his lengthy absence for medical reasons and his allegations, it needed medical clearance from his physician that he was fit to return to work. The company reiterated that he would be paid for a few days until he provided the required medical information.
A week later, Centreline sent another request for medical information indicating whether he was fit to resume his regular employment duties or needed any accommodation. It stated that it was committed to working with him to return him to work and invited him to reach out if he had any questions.
On April 24, the worker responded by email, saying that the medical questions “were not necessary nor directly related to his job” and they had been asked after his return to work. He declined to provide any medical information and noted that he was still seeking a response to his concerns about the toxic work environment.
Medical information allowed
Employers aren’t entitled to specific medical information such as a diagnosis, but they are entitled to some information, says Laura Dunnigan, a labour and employment lawyer at Mathews Dinsdale in Calgary.
“When an employee is providing those kinds of doctor’s notes, as long as it's substantiated by medical information, an employer can allow them to remain on a medical leave of absence until such time as they're fit to return to duty,” she says. “But when an employee is ready to return to work and there are questions around their fitness to return, the employer has legal obligations under occupational health and safety legislation to ensure that they’re ready to come back.”
In addition, when an employee has been away for a significant a period of time like the worker in this case, it's not unreasonable to make sure that their medical providers deem them fit to return to work, says Dunnigan.
On April 26, the worker filed an employment standards complaint seeking compensation for unpaid hours of work before his medical leave, indicating “I still work there” on the complaint form. Centreline wasn’t informed of the complaint at the time.
Centreline sent two more requests for medical information with a deadline of May 12, after which it would stop paying him. The worker didn’t respond, so the company stopped paying him. On June 16, the company once again asked for medical information about the worker’s fitness to work.
“If an employee has provided medical information to indicate they're not fit to work, it's reasonable to confirm that they’re fit to work when they're ready to return - it's not really the employee that gets to make that determination,” says Dunnigan.
Alleged termination of employment
Around the same time in mid-June, the worker started working for another dentist but didn’t tell Centreline. A short time later, he sent an email with the same refusal to provide medical information and he amended his complaint to allege that he had been terminated when he was told there was no work for him.
An employment standards officer ordered Centreline to pay the worker $13,310.77 in statutory termination pay, $457.56 in vacation pay, and a $1,376.83 fee. Centreline appealed, arguing that the worker resigned from his employment.
The appeal body of the ALRB referred to the legal tests around the termination of an employment relationship, noting that the worker had the onus to establish that he was terminated and the company had the onus to establish that the worker resigned.
The ALRB determined that the evidence didn’t support the worker's claim that his employment was terminated. Centreline made several actions indicating that it continued to consider the worker to be an employee, including continued requests for medical information, offers to continue paying the worker during the information-gathering period, and explicit communications stating that the worker remained an employee, the ALRB said.
The ALRB noted that the worker himself indicated in his initial employment standards complaint that he still worked for Centreline.
“The test is from an objective standpoint, whether a reasonable person would consider their employment to have been terminated in the circumstances, and looking at the emails requesting further information from the worker on an ongoing basis suggests that [Centreline] thought he was still employed,” says Dunnigan.
Intent to resign unproven
The ALRB also found the evidence of resignation inconclusive, noting that resignation requires both a subjective intent to resign and objective actions that clearly convey this intent to the employer. The worker’s emails and actions, including his continued disputes over medical documentation and his assertion in his complaint that he was still employed, didn’t meet this threshold, the ALRB said.
As for the fact that the worker started working for another employer, this didn’t necessarily indicate that the worker intended to resign, as the ambiguous circumstances might have given the worker an incorrect impression that he had been dismissed, said the ALRB.
It can be challenging to make decisions in real time as things are happening, but Centreline could have been more active in its communications with the worker during the medical leave, according to Dunnigan.
“The company could have pushed a little bit harder to obtain the medical information that was required to determine [the worker’s] fitness for duty and force the worker to participate in that process,” she says. “Accommodation is a two-way street - an employer has to accommodate to the point of undue hardship and the employee also has to participate in accommodation, and that accommodation doesn't need to be perfect - this worker really pushed back on that, and he actually went out and got another job without telling the employer.”
“I think had [Centreline] been more engaged and not left the worker out there, it may have been able to get to a frustration or an abandonment argument once it learned that the worker had obtained alternative employment,” she adds.
Employment status unresolved
The ALRB ruled that, in the absence of a termination or a resignation, the worker’s employment status remained intact. It revoked the order of the employment standards officer, citing unresolved ambiguities surrounding the worker’s employment status.
Clear and frequent communication might have helped avoid the ambiguity of this situation, according to Dunnigan.
“If an employer feels that an employee isn’t adequately participating in an accommodation process, it should reach out and communicate with them about that and what the consequences might be of not participating in accommodation,” she says. “If you're going to rely on resignation, be sure that it’s confirmed in writing by the employee, and if you're dealing with someone who's on medical leave and who's being difficult, ensure that you're taking the right steps to confirm that you've accommodated to the point of undue hardship.”
See Centreline Dental Lab Ltd. v. Tymczyszyn, 2024 ABSESAB 18.
