How to Make Work a Return to Work from Medical Leave (and avoid human rights liability)

Once an employee on leave has signaled that a return to work is pending, it is important that an employer handle the return appropriately in order to comply with human rights legislation, which requires accommodation of disability to the point of undue hardship. While this is a well-founded obligation, putting it into practice is a more nuanced endeavor.

Here are some processes that we recommend an employer follow when facilitating a return to work:

  1. Ask for advance notice, if possible, that an employee will be returning. This will allow time to put accommodations in place and to ensure that the workplace is prepared to support the return.
  1. Before the return, ask for confirmation that an employee is cleared to return to work, and prepare a list of questions for the employee’s doctor to ascertain the employee’s limitations and needs. Alternatively, provide a functional abilities form that contemplates both physical and mental disability. Do not ask for an employee’s diagnosis. An employer should bear the cost of any medical documentation requested.
  1. Act in a timely manner. An employer who unduly delays a return may be found to be discriminating against an employee on the basis of disability. A delay in return may represent loss of income for the employee that the employer could be liable for.
  1. Consider underlying issues. A common scenario sees an employee go off on stress leave in relation to a workplace dynamic – perhaps an issue of workload, personality conflict, or in response to performance management. Consider asking the employee if he or she foresees any barriers to a successful return. If it’s something that can be addressed, do so, or else you may be repeating this process again.
  1. Come up with a return to work plan that integrates necessary accommodations and provides the employee with some structure and expectations. Recognize that this work plan is subject to change and schedule regular follow up meetings in the initial return to work period to adjust as necessary.

If, despite your collective best efforts and full accommodation, the employee does not succeed in the return in the short term, consider whether you need to obtain further medical information, adjust the plan, or if there’s a different role that the employee can perform temporarily. If not, it may be that the employee needs to resume a leave.

A best practice is to keep the employee involved in the process and never to give him or her the impression of being a nuisance or drain on the workplace. A supported employee often equates to a more productive employee with a greater chance of a successful return.

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