Worker provided limited medical information for long-term absence, but refused employer’s request for information on functional abilities or restrictions
A Nova Scotia worker didn’t abandon her job when she failed to provide medical information supporting her long-term absence, but her employer had just cause to dismiss her because of that failure, the Nova Scotia Labour Board has ruled.
Nancy MacInnis was hired to work as an accounts payable clerk for the Town of Westville, N.S., in April 2009. Her duties included managing the town’s accounts and sharing counter work with other employees. She worked without any problems for more than six years until Dec. 9, 2015, when she had to take time off work due to an injury suffered at work — an injury that was related to a pre-existing condition.
MacInnis began an ease-back program in which she gradually returned to work, starting in October 2016. By the spring of 2017, she was working full-time hours but wasn’t performing full-time duties. She was able to perform the tasks she was assigned without complaint and continued in the program as she gradually acclimatized herself to the job.
In April 2017, the town’s chief administrative officer (CAO) learned of a workers’ compensation decision in which MacInnis had appealed for entitlement to benefits from the period of her injury to the start of her ease-back program — Dec. 9, 2015 to Oct. 24, 2016. The decision — which allowed MacInnis’ appeal — contained information that had not been previously available to the town, namely that a discharge report had indicated MacInnis was able to return to work with her full duties and hours on Oct. 24, 2016. The decision also stated that “the evidence supports a finding that there is no medical reason that the worker is unable to return to work.”
While MacInnis had been away from work, the town’s staff had undergone some realignment that led to certain reassignments. This continued after MacInnis returned to work and on Nov. 3, 2017, the CAO informed her that due to restructuring she would be required to perform full-time duties. These duties would include transcribing audio recordings of the town council’s meetings, as well as meetings by other committees — a job MacInnis had done before she had gone off work.
However, MacInnis said she was experiencing tingling and numbness in her fingers and hands and she couldn’t do transcription work because it would be painful for her. The CAO replied that there was no medical documentation to support her contention that she couldn’t perform transcription work, which was a normal part of her position’s duties.
Two days later, MacInnis emailed the CAO to say she wasn’t feeling well and wouldn’t be at work the next day. The next day, she provided a certificate from her family doctor stating that she would be unable to work from Nov. 6 to 19 “due to medical reasons” and her expected return-to-work date was Nov. 20.
Three days before the expected return to work date — Nov. 17 — MacInnis provided a second certificate from her doctor advising she would be absent for a further two weeks and her expected return-to-work date was now Dec. 1.
On Dec. 1, MacInnis failed to report to work and instead provided a third doctor’s certificate for absences from Dec. 1 to 17, with a return-to-work date of Dec. 18.
A few days after receiving the third certificate, the town's CAO requested information from MacInnis’ doctor regarding her ability to perform her duties including transcription and, if she was restricted, how long the restriction would last. He also requested advice on helping MacInnis fulfill her duties through modified work and if a referral to a specialist was necessary.
MacInnis responded to the request with another certificate from her doctor. The certificate was nearly identical to the previous ones, except that the dates had changed and her expected return to work was Jan. 3, 2018. The CAO emailed MacInnis reminding her that she had an obligation to co-operate and if she didn’t provide the requested information immediately, the town would consider her to be refusing to work.
MacInnis told the CAO that her doctor had returned the uncompleted information package to her and said the workers’ compensation board had the necessary information. The CAO suggested she seek legal advice and said the town would consider her to have abandoned her position if she failed to provide the medical information. MacInnis responded with a fifth medical certificate indicating a return-to-work date of Jan. 9.
The CAO sent one more warning to MacInnis about providing the medical information to support her absence from work, and MacInnis responded by providing a sixth medical certificate from her doctor — again, identical to the others, except for different dates covering Jan. 8 to May 4 and a return-to-work date marked as “unknown.”
MacInnis’ doctor didn’t provide the town with the requested information on her ability to perform her duties or her restrictions and MacInnis didn’t return to work, so the town terminated her employment for “excessive unexcused absence and from your insubordination in refusing to fulfill your duty to co-operate by providing information to explain your absence and your refusal to perform assigned tasks,” effective Jan. 29, 2018.
MacInnis filed a labour standards complaint for unjust dismissal.
The board found that MacInnis didn’t report to work after Nov. 3, 2017, and only provided medical certificates that were of “limited value,” but the fact she continued to provide the certificates “on an ongoing and timely basis” and was in frequent contact with the CAO about her absence indicated she didn’t intend to abandon her position and planned to return at some point — in fact, she “sought strenuously to keep her position,” said the board.
However, the board found that an employee who claims that an illness is preventing her from working “has a responsibility to satisfy the employer that the illness is bona fide — that is, a true illness.” The medical certificates MacInnis provided had enough information to support absences for a short-term illness, but for an absence as long as MacInnis’ —more than six months, with no expected returned date on her last medical certificate — the town was entitled to request additional information. While her complete medical history wasn’t necessary, it was reasonable for the town to seek information on her ability to perform her job duties and her restrictions, said the board.
The board noted that MacInnis’ doctor probably didn’t provide additional information because MacInnis didn’t agree to the release of her medical information. However, she should have consented to provide at least some of the information the town requested, but instead she “made a wilful decision not to authorize her physician to answer the town’s questions,” despite warnings from the CAO that the town would consider her to have abandoned her job if she didn’t.
As a result, the board found that while MacInnis didn’t abandon her position, the town had just cause to terminate her employment due to a failure to provide requested medical information supporting her long-term absence.
For more information see:
• Westville (Town), and MacInnis, Re, 2018 CarswellNS 697 (N.S. Lab. Bd.).
