Employees Requesting To Return To Work After A Disability Leave? Employers, Make Appropriate Inquiries!

The British Columbia Court of Appeal recently confirmed the legal test for prima facie discrimination in the context of an employee's request to return to work after being on disability leave. In a unanimous decision from the BC Court of Appeal, the Honourable Madam Justice Kirkpatrick, writing for the Court, held that there remains an obligation on an employer to make inquiries of an employee's condition before they can simply deny an employee's request to return to work from a disability leave.

In Boehringer Ingelheim (Canada) Ltd./Ltée. v. Lynda Kerr 2011 BCCA 266, the Court dismissed the employer's appeal of a decision from the Supreme Court that had similarly dismissed the employer's judicial review of a decision from the British Columbia Human Rights Tribunal ("HRT"). The HRT held that the employer had discriminated against their employee, Lynda Kerr.