Across Canada, employees are entitled to wide ranging employment and human rights protections during a medical leave – including job protection.
But sometimes the actions of employees during a medical leave can go too far, terminating an employer’s obligation to continue to accommodate the leave.
Take for example the recent case of Firouzeh “Effy”Zarabi-Majd – a Toronto Police Service officer who went on medical leave in 2019 because she was experiencing post-traumatic stress disorder.
During her medical leave, it was alleged that she used her personal Twitter account to make false, inappropriate, abusive and libelous comments about the Toronto Police chief, her fellow officers and members of the Toronto Police Service Board board. It was also alleged she harassed an officer to give evidence at a criminal trial.
Zarabi-Majd was ordered to stop making the comments on Twitter but she failed to comply. She later failed to participate in two Professional Standard Branch investigations and failed to comply with orders from the TPS disciplinary tribunal.
This conduct led to her facing discreditable conduct and insubordination charges under the Police Services Act.
When a disciplinary hearing was scheduled in 2022, Zarabi-Majd sought multiple adjournments due to her PTSD. She requested that her disciplinary be adjourned indefinitely due to her disability.
The hearing officer denied her requests and the hearing proceeded in her absence.
Zarabi-Majd was dismissed from the TPS following the hearing in 2023. She appealed the decision to the Superior Court, arguing in part that the hearing officer did not appropriately accommodate her and could have offered her other reasonable accommodations.
The court denied the appeal in full, finding in part that, “The process of devising appropriate accommodations for a health-related disability must be collaborative.”
This means every employee has an obligation to participate in the accommodation of their disability. The court accepted that the hearing officer provided Zarabi-Majd with various options to participate in the hearing, which she refused.
Notably, the court also weighed in on the reason for Zarabi-Majd’s dismissal. The court found her dismissal was a proportionate or fair limit on her freedom of expression. The court agreed that Zarabi-Majd was punished for using social media in a way that violated her employer’s code of conduct. It rejected her argument that Twitter was the only way for her to address her allegations of misconduct with the TPS.
This case has broad implications for employers.
Sometimes employers are faced with employees who do not participate in the accommodation of their own disability. Examples of this could include failing to provide reasonable medical documentation to support an accommodation request or failing to follow one’s treatment plan. Employers may reasonably request documentation to support requested accommodations and employees will be expected to work with reasonable accommodation proposals.
It is not open to employees to flatly refuse reasonable accommodations.
Another interesting outcome of this case is the court’s analysis on the intersection between personal social media use and employment. It found that it was reasonable for the TPS to sanction Zarabi-Majd for making offensive comments about the service and its members on Twitter even though she argued it was the only place she felt she could make allegations about misconduct.
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This decision will help employers protect their online reputations, particularly at a time when more and more employees are – at times – unreasonably taking to social media to make public statements and complaints about their workplaces.
Accommodating an employee during a medical leave is often a complicated obligation with a high legal bar for employers to meet. Employers are often hamstrung with little guidance and information to meet their accommodation obligations despite being faced with serious legal consequences.
But, as this case shows, employers are not required to grant unreasonable accommodation requests or accept misconduct during a medical leave. While wide ranging, an employee’s right to accommodation comes with limits.
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The content of this article is general information only and is not legal advice.