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Good morning, we have an employee who has had surgery and has provided a Functional Abilities Form (FAF), (at our request) which states the employee has “had major surgery and is required to be excused from work for 8 weeks” however the employee continues to work. I will be meeting with the employee today to discuss their situation. This situation raises legal, health/safety, and liability risks. I would like to advise them that they should be following the FAF as it states a need for accommodation and we need to enforce the work restriction. I will note that it is a protected leave in Ontario, we don’t have short term disability benefits and they will need to be placed on a medical leave. Should their condition change they would need to provide an updated FAF with further detail (not a diagnosis). In general I will advise, we need to advise that we need to ensure we’re all following medical guidance and keeping the employee safe. Upon their return, or having a new FAF form, we could then discuss further accommodation process, with reduced hours, modified duties. I understand that their vacation balance could be used, but only only at their request. If they want to keep working, I would ask that they provide written medical confirmation that they are fit to work, including limitations. If we do not receive that I will advise that we cannot allow them to work as we must abide by the medical documentation provided. I will document everything. Would you please review above and advise if you have any further guidance that should be followed? Thank you.
Your approach is generally sound. If the only medical information currently available is a Functional Abilities Form stating the employee has had major surgery and must be excused from work for eight weeks, the employer should not ignore that information. From both a health and safety and liability perspective, it is reasonable to advise the employee that the organization must rely on the medical documentation provided unless updated medical information is received confirming fitness for work and outlining any restrictions or limitations. Employers are entitled to seek functional abilities information for accommodation and return-to-work purposes, provided they focus on restrictions and capabilities rather than diagnosis.
In your meeting, I would emphasize that the discussion is not disciplinary and is focused on ensuring the employee’s health, safety, and successful recovery. Explain that based on the current FAF, the organization is prepared to place them on a protected medical leave and maintain communication regarding any changes to their functional abilities. If the employee wishes to continue working, request updated written medical confirmation indicating they are fit to work and specifying any restrictions, limitations, reduced hours, or modified duties that may be required.
I would also avoid characterizing the situation as simply “enforcing” the restriction. Instead, frame it as the employer’s obligation to act on the medical information available and to engage in the accommodation process. If updated medical information supports a return to work with restrictions, you can then assess modified duties, reduced hours, or a gradual return-to-work plan as appropriate.
Finally, document the meeting, the medical information relied upon, the employee’s position, and any requests for updated medical documentation. Your understanding regarding vacation is also correct—vacation should generally only be applied at the employee’s request or with their agreement, rather than being imposed in place of a medical leave. This is a situation where careful documentation and a consistent reliance on objective medical information will be important.
-HRInsider Staff
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