When might a school board obtain an order for an independent medical evaluation

30 janvier 2020 | Nadya Tymochenko, Vivian Hua

( Disponible en anglais seulement )

A recent arbitral decision ruled that a school board was entitled to request an independent medical evaluation (IME) by a psychiatrist regarding whether its employee was fit to return to work, even though the employee previously provided the school board with a comprehensive medical assessment.

In December 2016, after numerous incidents indicating poor judgment, an elementary school teacher was placed on administrative leave pending the completion of an investigation. In February 2017, the administrative leave was converted to a sick leave after a medical note was provided by the teacher.

During the winter of 2018, the teacher was declared fit to return to work and resumed her duties. At this time, the issue of discipline regarding her alleged misconduct had not yet been resolved. The teacher was again placed on administrative leave in March 2018. During the school board’s investigation, she disclosed that she had experienced mental illness during her prior leave of absence.

She began employment for another school board in September 2018, but was dismissed by mid-November 2018.

Pursuant to a settlement agreement dated December 6, 2018, the teacher agreed to have her treating psychologist perform a comprehensive assessment, including her fitness to work and the nature of any accommodations she required.

A report dated February 21, 2019 was provided by the teacher’s treating psychologist, which indicated that the teacher was stable, fit for work and had no mental health issues that would interfere with her judgment. In particular, the report stated that the teacher: (i) had been working in a new school since September 2018; and (ii) reported that her professional relationships seemed “excellent”. Additionally, the report indicated that the teacher was managing criticism and conflict well.

Subsequently, both the school board and the union clarified that the teacher was dismissed from her employment in mid-November. In response, the psychologist noted: “[t]he fact that she was actually at work or not during [our] assessment does not change [our] conclusion.”

Not satisfied, the school board sought an order from the arbitrator requiring the teacher to attend an IME by a psychiatrist of its choosing.

Arbitrator Elaine Newman noted that the standard of “reasonable and compelling grounds” to order an IME is traditionally high and requires a delicate balancing between an employee’s right to privacy and integrity of the person and the employer’s interest in ensuring that an employee is able to work.

She found that the psychologist’s mistaken belief about the teacher’s employment was a “critical fact” that influenced the opinions in the report and, consequently, made the report unreliable. Moreover, she found that the school board had made reasonable efforts to obtain existing medical information before seeking an order for an IME.

Arbitrator Newman dismissed the grievance and issued an order for the teacher to attend and cooperate in a psychiatric IME to be arranged by the school board.

This decision provides further clarity for school boards regarding circumstances when an IME might be an appropriate course of action.

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