Three of the Most Significant Employer Obligation Misunderstandings

In this blog we consider how employers in three areas understandably but erroneously misunderstand their legal obligations.  

1. The Employee Medical Notein Support of a Requested Accommodation 

Employees generally understand when requesting an employer accommodate their medical limitations that some form of medical supporting documentation is required from the employee’ s treating healthcare provider.  

The question that often arises, however, is whether the employer is entitled to request further and more fulsome medical supporting documentation. 

Let’s say the employer received the following from its employee, Judy Smith:  

“Judy Smith has been my patient since 2022 and given her medical condition she requires 100% remote work on an indefinite basis.” 

Question: Is the employer required to accept this medical note, or can the employer require the employee arrange for her treating healthcare practitioners to complete a more fulsome medical certificate?  

According to the Ontario Human Rights Commission in its “Duty to Accommodate Policy”, the person with a disability is required, in part, to: 

“Answer questions or provide information about relevant restrictions or limitations, including information from healthcare professionals.” (emphasis ours) 

This question was specifically addressed by the Ontario Human Rights Tribunal in Baber v. York Region District School Board, 2011 HRTO 213.  

Ms. Baber requested a change in teaching assignment from secondary school teacher to teacher-librarian/ESL teacher based on her medical condition. She claimed the denial of that request by the York Region District School Board (“Board”) was discriminatory.  

Ms. Baber provided the Board with a medical note simply indicating,  

 “Due to increasing health issues please allow for this employee to be a teacher librarian.”  

Ms. Baber submitted a further note from her psychiatrist stating,  

“I would concur with [the family doctor’s] recommendation that if it is at all possible, Ms. Baber’s health issues would be assisted by a transfer to a teacher-librarian position.” 

The Board took the position Ms. Baber’s medical notes were inadequate to support her requested accommodation and requested she agree to participate in certain options designed to secure more fulsome medical supporting information. Ms. Baber refused.  

The Board argued, in part, that Ms. Baber never provided sufficient medical information to allow the Board to determine what, if any, workplace accommodations she required because of the disability. The Board further argued that it ultimately terminated Ms. Baber’s employment for cause based on her ongoing refusal over the course of many months to respond to the Board’s reasonable requests for this medical information.  

The Board advised Ms. Baber these medical notes were inadequate to support Ms. Baber’s request to work as a teacher-librarian/ESL as they did not confirm her inability to be a secondary school teacher. 

Ms. Baber continued to take the position that the medical documentation provided was more than adequate which led to her being terminated for cause.  

The Tribunal in its decision stated, in part, as follows: 

“However, the duty to accommodate places obligations on the employee seeking accommodation as well. An employee who seeks accommodation has a duty to co-operate in the accommodation process by providing her employer with a reasonable amount of information about her physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship.” (emphasis ours) 

The Tribunal further stated:  

“More importantly, [Ms. Baber’s] medical reports did not identify [her] physical or mental restrictions or the specific disability-related accommodations she required. It is not sufficient for a medical certificate to merely state that an employee would benefit from placement in a particular job. The medical practitioner’s role in the accommodation process is not to identify the specific job in which an employee is to be accommodated but rather to identify the employee’s disability-related needs and restrictions. It is then up to the employer, who has the ultimate responsibility for accommodation in the workplace, to take that basic information and to determine whether and how the applicant’s disability-related needs might be accommodated up to the point of undue hardship.”  

The Tribunal then applies this principle to the case before it stating: 

“[Ms. Baber] asked Principal Oliver to change her teaching assignment and submitted various medical notes recommending that [she] be given a teacher-librarian or teacher-librarian/ESL teaching assignment. Those notes were not sufficient to support [her] accommodation request in that they failed to identify [her] disability related needs or the physical and mental restrictions underlying the request for a change in [her] teaching assignment. The [Board] was entitled to seek further information about [Ms. Baber’s] disability-related needs, at which point [she] had a duty to cooperate in the accommodation process by providing her employer with medical documentation confirming those needs.”  (emphasis ours) 

And finally, the Tribunal summarized the case before it as follows: 

“However, she chose not to provide such information. [Ms. Baber] believed it was sufficient to provide the employer with notes from her doctors recommending that she be placed in a particular job. However, this was an error on her part… [Ms. Baber] knew that her employer required additional medical documentation either substantiating her ongoing absence from work or facilitating her return to work with or without accommodation, failing which her employment would be terminated. She consistently refused to provide the necessary medical information. The [Board] did not breach its duty to accommodate [Ms. Baber] when it terminated her employment for her refusal or failure in that regard.” (emphasis ours) 

So what can the employer elect to do in response to Judy Smith’s medical note seeking 100% remote work on an indefinite basis?  

The employer can require Judy arrange to provide further and more fulsome medical supporting documentation to substantiate Judy’s request to work 100% remotely on an indefinite basis.  

2. The Vacation Calculation Error

Vacation pay is calculated on more than just base salary. Each jurisdiction stipulates vacationable earnings (i.e. earnings you are required to pay vacation pay on). 

In every jurisdiction and in almost all circumstances, employers are required to pay vacation pay on commissions and work-related bonuses. 

In some provinces Commissions earned by a route salesperson or earned primarily at the employer’s premises (yes, working from home can qualify) are classified as vacationable earnings. 

In some jurisdictions, salespersons who are paid wholly or partly by commission earned in respect of sales of (or offers to purchase) goods or services that are normally made away from the employer’s premises are exempt from vacation pay. 

In general, bonuses that are non-discretionary or are related to hours of work, productivity or efficiency are classified as vacationable earnings 

• For example, a $1,000 bonus for each employee if the organization meets a projected sales target would require vacation pay 
• However, aholidaybonus that is provided to all employees regardless of performance would not be

3. What Does Permitting Overtime Mean and Why is it Relevant?

Many employees choose to work through their lunch or continue to work at home “to get the job done” once they have left the office. Some employees will get dropped off early based on their transportation commuting arrangements so why not get started early on the day’s work requirements?  

Many employers have policies, however, that provide for the employee requirement to obtain prior supervisory approval before working overtime.  

So, what’s the fuss?  

Ontario’s minimum employment standards regulation provides at Section 6(1) for the following:  

“Subject to subsection (2), work shall be deemed to be performed by an employee for the employer, 

(a) where work is, 

(i) permitted or suffered to be done by the employer, or 

(ii) in fact performed by an employee although a term of the contract of employment expressly forbids or limits hours of work or requires the employer to authorize hours of work in advance.” 

Section 174 (1) of the federal Canada Labour Code provides as follows:  

“Overtime pay or time off 

174 (1) Subject to any regulations made under section 175, when an employee is required or permitted to work overtime, they are entitled to 

(a) be paid for the overtime at a rate of wages not less than one and one-half times their regular rate of wages; or 

(b) be granted not less than one and one-half hours of time off with pay for each hour of overtime worked, subject to subsections (2) to (5). 

These provisions and other similar provisions across Canada essentially mean that even if there was no authorization received by the employee to work overtime, employees are entitled to overtime compensation as the work was nonetheless performed.  

This issue has become the subject of a number of class action lawsuits including the Fresco v. CIBC, 2022 ONCA 115 case. In Fresco, the claim alleged, in part, that CIBC “required or permitted” some 31,000 customer service employees to work unpaid overtime in violation of Section 174 (1) of the Canada Labour Code.  

The Court in its decision had the opportunity to interpret what “permits” means. The Court stated that given the realities of the workplace, and the remedial purpose of employment standards protections, “permit” means to “allow” or “fail to prevent”. The Court decided that liability for overtime exists whenever it is permitted, even if it is not required or authorized.  

The Court went further in denying employers the ability to look the other way when an employee is working overtime and then claim the employer had not required or permitted the work be performed. The Court took it even further by identifying employers are required to pay overtime if it in effect acquiesces by its failure to prevent.  

Interestingly, in reviewing the Bank’s pre-approval overtime policy the Court stated although there is nothing wrong with a pre-approval policy, it cannot be a pre-condition for payment of overtime.  

CIBC ultimately agreed to settle the claim for $153 million!  

To learn more about common misunderstanding employers make, join us for our webinar The Hidden Cost of Getting It Wrong: Misunderstanding One Employer Right and Two Employer Mistakes on February 27th.