Silence Is Not Golden During A Leave of Absence

Is an employee required to communicate with his or her employer during a medical leave of absence? Can failure to respond result in the employee being terminated for cause? The short answer is that failure to respond to the employer`s reasonable requests for information could result in an employee, even a long term employee, losing his or her employment while on a leave of absence.

Mr. Betts was employed with the same company for 15 years. Under the terms of his employment contract he was entitled to employment benefits including short term disability benefits. After approximately nine years of employment, he began to suffer from major recurring depressive disorder. He took a brief leave of absence to seek treatment for the disorder. During his absence he applied for and received short term disability benefits.

He returned to work and, for the next five years, his employment appears to have been uneventful. Then in 2013, his father passed away and his depressive symptoms worsened. In 2013, Mr. Betts failed to report for work. The benefit provider was informed and requested that Mr. Betts submit the requisite forms in order to obtain benefits. Mr. Betts did meet with his family doctor who increased his medication and advised that improvement would likely not occur for a month or two. Unfortunately, by that time, Mr. Betts had failed to meet the deadline for submitting his forms for short term disability benefits.

At approximately the same time, Mr. Betts relocated to another province to live with his fiancé. By email, he advised that his family doctor was unwilling to provide a declaration for insurance purposes as she had not been involved in the process to initiate the disability request. In his new location, Mr. Betts found and began therapy with a psychotherapist. However, the insurance plan required the employee declaration to be signed by either a physician or a psychiatrist.

Mr. Betts application for benefits was rejected and he appealed. As part of the appeal process, he was given further opportunity to submit the requisite medical information. That opportunity was extended five times with the fifth extension including notice that if he did not supply the information, his employer would consider him to have abandoned his employment. Mr. Betts advised that he would be relying only on his existing doctor's note and would not provide anything further. When dismissed, he sued for wrongful termination.

The court rejected his case, stating: "Even an employee suffering from medical issues is not immune from being found to have abandoned his/her employment. A failure to follow the directives and requirements under the Plan can be akin to disobedience, which would normally justify dismissal. To the extent that the plaintiff argues that his medical condition itself precluded him from complying with the Plan’s requirements, there is no medical evidence before me upon which I could make such a finding." (para. 62).

The Lesson: An employee must act reasonably when on a medical leave of absence. Reasonable requests from an employer for further information must be responded to. One cannot be silent and hope that everything will work out. In this case, the direct result of Mr. Betts' silence was that he lost his wrongful termination lawsuit and the golden benefits he claimed he needed.

Betts v IBM Canada Inc., 2015 ONSC 5298 https://www.canlii.org/en/on/onsc/doc/2015/2015onsc5298/2015onsc5298.pdf

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