Ontario Human Rights Tribunal Finds Employer Properly Required Employee to Undergo IME

In Bottiglia v. Ottawa Catholic School Board, 2015 HRTO 1178, the Human Rights Tribunal of Ontario (“the Tribunal”) considered whether the employer failed to fulfil its duty of accommodation by requiring an employee to participate in an independent medical examination (IME).

Marcello Bottiglia was a Superintendent of Schools for the Ottawa Catholic School Board (“the Board”) with over 30 years’ seniority. Having accumulated 465 days of paid sick leave, and having been diagnosed with unipolar disorder, Mr. Bottiglia had been off work on paid sick leave for almost two years. In February 2012, he confirmed to his employer that he was unable to return to work, and his recovery would take a prolonged period of time. In June 2012, Mr. Bottiglia’s doctor wrote to the Board, reiterating that he was unable to return to work and that a return at that time might place him at a serious risk of relapse. In August 2012, however, the Board was advised that Mr. Bottiglia would be able to return to work on a limited basis sometime in the next two months. The evidence demonstrated that this anticipated return to work corresponded with the time by which Mr. Bottiglia’s sick leave and vacation credits would be entirely depleted.

Mr. Bottiglia’s proposed return to work plan involved him initially working for only eight hours per week with no evening meetings, as well as a work hardening process that would take six to 12 months to complete, with no guarantee he would return to full time duties during that period.  Given its concerns with this proposal and the timing of his return to work, the Board requested that Mr. Bottiglia undergo an IME. The employee opposed the request for an IME, arguing that, if the employer wanted more information, it should have taken a less intrusive step, such as conferring with his family physician. IMEs, Mr. Bottiglia argued, are intrusive, subject to abuse, and should be used only as a last resort.

When the Board refused to return him to work without an IME, Mr. Bottiglia brought an application before the Tribunal, alleging discrimination on the basis of disability. Specifically, he alleged that the Board had failed to accommodate his return to work by not participating in the process in good faith, not accepting his initial return to work proposal, refusing to confer with his doctor, failing to hold a return to work meeting, requiring him to participate in the IME, and then compromising the examiner’s impartiality.

The Tribunal dismissed the application and found it was reasonable for the Board to require the employee to undergo an IME in order for it to meet its obligations to appropriately accommodate him.  The Tribunal found that the Board had bona fide reasons to question the adequacy and reliability of the information provided to it; in particular:

• the employee’s medical condition and ability to return to work, given the significant and unexpected changes in the employee’s stated ability to return, and the tentative and uncertain prognosis given by his physician,

• the adequacy and appropriateness of the employee’s proposed return to work plan, given the nature of the proposed accommodation, the employer’s experience with work hardening, and the essential duties of a superintendent, and

• the fact that the Employee’s proposed return to work after an absence of over two years coincided with the end of his paid leave.

The Tribunal went on to find that the Board acted in good faith throughout the accommodation process overall, and that its efforts to meet its procedural duties to accommodate the employee were reasonable.

The Tribunal added the caveat that an employer may request that an employee undergo an IME only in the rarest of circumstances, but that this case fell well within those parameters.

This decision confirms that, although rare, circumstances do exist where employers may legitimately require employees to undergo an IME. When an employee submits inconsistent information, multiple return to work dates, or requests for accommodation that do not suit their particular functions in the workplace, the Tribunal may find that an IME is not inconsistent with the duty to accommodate.