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Hello, we have an employee who has noted having physical health issues and mental health issues. We have struggled to keep the employee on any kind of regular work hours. Their work hours previously had been all over the place, VERY early morning hour and late night hours. They then put forward an enormous amount of overtime, which we struggled to justify as we really didn’t know when they were working. We tried to get the employee back to regular working hours, proposed a schedule within our business operating hours and they immediately took a leave. They then provided a doctor note for a gradual return to work that stated they could work 2 hours per day for 2 weeks, 4 hours per day for 2 weeks, 6 hours peer day for 2 weeks and then proposed the employee return to prior to the leave hours. Well we don’t know what those are! We do not want the employee working all over the place hours (for lack of a better statement). There needs to be structure, collaboration and work aligning with the rest of the team and the company. We continue to state that the goal is to return to regular work hours and we are willing to provide some flexibility. We have met with the employee several times and have been flexible. We are abiding by the doctor note provided that states she can work these hours. The employee cries on every meeting and we are finding this particularly difficult in trying to be flexible, but really we agree on a schedule, then they take it further and want even more flexibility (way longer hours). Their performance is lacking as it takes them a very long time to complete any task. Would you please offer some guidance on our best practice in this situation moving forward?
Note: This is general guidance, not legal advice. For complex cases like this, it’s appropriate to consult an employment lawyer.
You’re facing several overlapping challenges:
A. Lack of Clear, Predictable Hours
The employee historically worked inconsistent early-morning/late-night hours. Returning to irregular, unstructured hours is not operationally feasible.
B. A GRTW Plan That Is Incomplete
The doctor’s note gives daily hours, but not when those hours must occur. Without time-of-day restrictions, you decide the schedule, not the employee.
C. Boundary-Pushing and Emotional Meetings
The employee agrees to schedules, then requests additional flexibility. Emotional responses (crying) make discussions difficult but do not change your rights and obligations.
D. Performance Concerns
Productivity is low and tasks take significantly longer. You need to document this and manage performance separately from accommodation, but in a coordinated way.
Your Legal Framework (Canada)
Duty to AccommodateYou must accommodate disability to the point of undue hardship, but you are not required to:
-Allow the employee to choose any work hours they want.
-Allow unlimited flexibility.
-Accept irregular, unpredictable hours if it disrupts operations.
-Approve overtime, especially if the doctor has set hour limits.
-Tolerate poor performance if it is not medically justified.You can and should require:
-Predictable hours.
-Work performed during business operating times.
-Compliance with the medically-approved GRTW plan.
-Updated medical information if the plan is unclear or ineffective.What You Can Do Next (Best Practices)
A. Request Clarification From the Treating PhysicianThis is your strongest next step.
You are entitled to request medical clarification when the current doctor’s note is insufficient for operational planning.
What you can ask (legally permitted):
-Whether the employee can work within your standard business hours.
-Whether the employee has any medical restrictions on time of day they can work.
-What level of predictability/consistency is medically required.
-Whether overtime or extended hours are clinically contraindicated.
-Expected prognosis for functional improvement (NOT diagnosis).You can provide the doctor with your business hours (e.g., 8:00–4:30) and ask whether the employee can work their 2, 4, or 6 scheduled hours within those parameters.
You should also ask the physician to comment on:
-Any required pace of work.
-Ability to complete tasks within normal timeframes.
-Whether additional rest breaks are required.This is not a request for diagnosis—only functional capacity.
B. Reinforce That the GRTW Plan Must Be Structured
Tell the employee (and put in writing):
-“Your GRTW hours must occur between X and Y.”
-“Overtime is not permitted during your medical accommodation period.”
-“Hours outside business operations are not acceptable.”The doctor has not stated that the employee must work irregular hours, so you do not have to allow them.
C. Separate the Accommodation From Performance Issues
You cannot discipline for disability-related performance issues if the disability is the cause.
But you can:
-Document all missed deadlines, prolonged tasks, and quality issues
-Ask the doctor whether the performance concerns are medically related
-Set clear expectations during the GRTW periodIf performance problems are not medically linked, you may proceed with performance management later.
D. Manage Emotional Responses Compassionately but Firmly
Meetings with crying employees can make employers hesitant to set boundaries. But emotional reactions do not change your obligations.
Best practice is to:
-Acknowledge their feelings
-Keep meetings short.
-Focus on the agreed GRTW plan.
-Avoid negotiating schedules during emotional distress.
-Always follow up with written summaries.E. Set Clear Boundaries Around Overtime
While the employee is on a GRTW:
-No overtime should be permitted
-Doing more hours than medically approved can be a health and liability risk
-If they insist they “can do more,” refer back to the doctor
-If needed, ask for clarification: “Is the employee medically allowed to exceed the graduated plan?”A Sample Script You Can Use With the Employee
“We are committed to following your doctor’s recommendations for a gradual return to work.
Your doctor has approved X hours per day for the next two weeks, increasing gradually.
These hours will be scheduled within our normal business hours of [8:00–4:30].
We are not able to support work outside of business hours, nor overtime, as this does not align with your medical plan or operational needs.
If your medical provider believes you require a different schedule, we will need updated medical documentation specifying the required hours and restrictions.”If the Employee Declines the Structured Schedule
If the employee:
-Refuses to follow the GRTW.
-Insists on working outside business hours.
-Pushes for overtime.
-Does not show up for scheduled hours……then they may need to remain on medical leave until they are able to perform work in accordance with operational needs.
An employer is not obligated to implement an unstructured or unworkable accommodation.
When to Escalate to Legal Advice
Consult a lawyer if:
-The employee refuses to follow the schedule.
-The doctor will not clarify the functional limitations.
-Performance issues escalate.
-You believe you have reached “undue hardship”.I hope this helps and best of luck!
-HRInsider Staff
Good morning, further to this thread, we remain working with our employee under the duty to accommodate a gradual return to regular work hours. There has been a set back, and now a little progress. The employee had provided a new doctors note that stated the employee could work only 4 hours per day indefinitely. We have now received a new doctor note that states a 6 hour daily work schedule but no long term time frame, simply ‘until further notice’. This is positive that more working hours have been proposed but we would like defined timeframes and have suggested in the future the employees healthcare provider provide hours of work progression using a general 6 week period. In addition, we have become aware that the employee has a personal business and they have worked the other job during day time hours. Please note for this instance, they advised us they could not work that day due to their son being ill. The other business info is publicly available on the internet and times for booking their services are publicly noted. I am unsure of how to address this, or if I need to. This adds to the sensitivities and compliance of working through this accommodation plan and we feel trust has been broken. We would appreciate any insight you could provide to help us navigate a process that is compliant and that works for the employee and our operational needs.
You are managing three interconnected issues: an ongoing duty to accommodate with unclear medical timelines, the need for structured progression toward regular hours, and concerns about outside employment that may appear inconsistent with stated limitations. These issues must be handled separately but in a coordinated way to remain compliant and reduce legal risk. The updated doctor’s note increasing the employee to six hours per day is positive progress, but “until further notice” does not prevent you from requesting clarification for operational planning purposes.
Under Canadian human rights law, accommodation must be individualized, medically supported, and periodically reviewed. You are entitled to request clarification about the expected duration of the six-hour restriction, whether further progression is anticipated, a recommended review date, and any functional limitations affecting pace or workload. You may not ask for diagnosis, but you can request functional capacity information. Framing this as a planning requirement — not skepticism — keeps the process compliant and professional.
The outside business activity should be approached cautiously. Secondary employment is generally permitted unless restricted by policy, but if an employee claims reduced capacity due to medical limitations while appearing to work elsewhere, you are allowed to seek clarification about overall work capacity. The issue is functional ability, not morality or punishment. Avoid accusations or referencing internet findings in a confrontational way.
A low-risk strategy is to ask, in writing, whether the six-hour medical limitation applies to total daily work capacity across all employment or only to your workplace. This keeps the focus on medical consistency rather than trust. In a meeting, you can neutrally ask the employee to confirm how their accommodation aligns with any other work activities. The goal is alignment and clarity, not confrontation.
If medical clarification confirms the employee is limited to six total hours per day across all employment, then working additional hours elsewhere may justify further review and possibly legal advice before taking any action. If the limitation is specific to your workplace due to identifiable stressors, you must assess whether that distinction is medically supported. Any concerns about credibility or misrepresentation should be handled carefully and only with legal guidance before discipline is considered.
The balanced path forward is to provisionally accept the six-hour note, request clearer timelines and progression expectations, confirm whether restrictions apply to all employment, and maintain structured scheduling within business hours. Keep documentation neutral, separate accommodation from performance management, and avoid emotional or accusatory discussions. If cooperation breaks down or inconsistencies become significant, consult legal counsel before escalating.
I hope this helps.
-HRInsider Staff
Thank you, we appreciate the guidance while working through this challenging issue. The employee has been booking off for appointments during the 6 hours of work time frame, 1-2 hours which reduces the hours working. While working limited hours and on a gradual return to regular work hours, are we within our rights to ask that the appointments are made outside of work hours? I would also have the same question about allowing vacation or personal time requests if you could please advise.
During a gradual return-to-work (GRTW) period, employers generally cannot prevent employees from attending medically necessary appointments, particularly when they relate to the condition being accommodated. However, it is reasonable to ask that appointments be scheduled outside of working hours where possible, especially when the employee is already working a reduced schedule (e.g., six hours per day). If an appointment cannot reasonably be arranged outside of work hours, the employee should notify the employer in advance and the time should be accommodated. This approach supports the goal of the GRTW plan—rebuilding work capacity and consistency—while still allowing access to necessary medical care.
If appointments become frequent or significantly disrupt the work schedule, the employer may seek limited clarification, such as whether the appointments relate to the accommodated condition and whether they must occur during working hours. The focus should remain on operational planning and functional limitations, rather than questioning the legitimacy of the treatment or requiring unnecessary medical details.
Vacation or personal leave requests can still be made during a gradual return to work, but they do not need to be approved automatically. Employers may apply their normal leave approval processes and consider operational needs when reviewing such requests. Because a GRTW is intended to gradually rebuild routine and stamina, frequent time away from work may interrupt the progression toward regular hours and may require a reassessment of the return-to-work plan.
Overall, a balanced approach is to allow necessary medical appointments, ask that they be scheduled outside working hours where reasonably possible, and review vacation or personal leave requests using standard workplace policies. Employers should ensure that decisions remain neutral, well-documented, and focused on supporting both the employee’s accommodation needs and operational requirements.
-HRInsider Staff
Thank you, your advice has ben most helpful. We continue to work through this accommodation. However, the employee has emailed this morning shortly after their work shift started and stated “I will not be in today.” Nothing more. As per your advice above, I believe we could ask if this relates to her accommodated condition. Further, could we ask that if not, is it for a vacation or personal day (which we provide our employees), and if they could please follow our policy of submitting a request and us being able to review it and authorize prior to the work shift, for operational business purposes?
You can follow up to ask whether the absence is related to their accommodation, since you’re actively managing a return-to-work plan and need some clarity for scheduling. If it’s not related, it’s generally reasonable to remind them to follow your usual process for requesting vacation or personal time in advance. The key is to keep the tone neutral and focused on planning rather than discipline. That said, I’m not a lawyer — this is general guidance based on typical Canadian HR practices, so you may want to check with legal counsel if the situation becomes more complex or sensitive. An ongoing conversation like this is often a good sign that you need an HR department or legal counsel in place for your workplace.
Best of luck –
HRInsider Staff -
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