In the context of the pandemic and the rise of telework, several employees have chosen, for personal reasons, to move away from urban centers, thereby distancing themselves from their workplace. Given that the majority of employers are now reinstating the requirement for in-person work performance, many accommodation requests supported by medical certificates recommending telework are being submitted to employers.
This is a delicate issue that involves balancing the exercise of management rights and the protection of employees’ fundamental rights.
Courts generally recognize that the requirement to perform work in person is a standard that may have disproportionate effects on certain employees who have a medical condition that limits their ability to travel to work.
In certain circumstances, the obligation to accommodate an employee with such a condition may take different forms, but always involves reaching a reasonable compromise between the employer and the employee.
What, then, is the approach that an employer must take in order to deal with requests from employees who seek, supported by a medical note, to be assigned to telework due to a medical condition?
An assessment that primarily falls within the employer’s responsibility
Courts recognize that the employer is best placed to determine how to accommodate an employee requesting accommodation. In this regard, the opinion of the treating physician on the type of telework accommodation is not, in itself, determinative and must be weighed against various other factors.
In other words, telework is one accommodation measure among others that may be set aside despite the recommendation of the treating physician. For example, other solutions allowing in-person work performance could, if they respect the employee’s functional limitations, be preferred, including:
- Taking breaks during long commutes;
- Carpooling;
- Using public transportation or adapted transport;
- Active transportation;
- Adjusting the work schedule.
The most important step in the accommodation process remains the assessment of the employee’s medical condition and the resulting functional limitations. When such an accommodation request is made by an employee, the employer may therefore request that medical details be provided by the treating physician or by a medical expert it has retained.
In addition to confirming the diagnosis in question, the requested details may notably concern:
- The employee’s functional limitations;
- The medical risks associated with the required standard compared to the standard already in place – here, travel by car or public transportation to the workplace;
- The medical risks that persist despite the implementation of identified accommodation measures;
- The prognosis, as well as, in certain cases, the cause of the medical condition, or the factors exacerbating the symptomatology.
In many cases, it is only once this information has been obtained that the parties can truly assess the solutions available to them. The employee cannot expect a perfect solution. Rather, the objective of the accommodation process remains the search for a reasonable compromise.
