It is somewhat difficult to challenge a medical note, but there are four alternatives.

First, and the best albeit the most expensive, is to have that employee attend a psychiatrist or other specialist in the area of the employee’s disability and have an independent medical examination conducted to ascertain whether the employee genuinely has an anxiety disorder or other genuine disability preventing them from working.

The second is to require the employee to provide consent for your specialist to speak to their doctor to discuss the employee’s capacities and limitations and require the employee’s doctor to delineate precisely what the employee can and cannot do, then attempt to accommodate those restrictions and modify their work on that basis.

The employee is required to co-operate with this. The doctor cannot advise you of the employee’s diagnosis, only their functionalities and limitations.

The third approach is to ask the employee’s doctor to provide a functional abilities’ report, listing their specific functionalities and limitations and provide them with work consistent with those.

Finally, you can arrange a meeting between the company and the employee and discuss what their limitations and functionalities are and devise an appropriate job. Once an employee acknowledges their ability to perform certain tasks, it will be very difficult to later refuse to attend to those.

If through one or more of these four techniques you establish that the employee is able to work but only on a modified/accommodated basis and such a job can be practically (albeit not perfectly) devised, the employee must accept it. Although you have to provide as comparable a job as possible, if the new position is objectively at a lower salary, the employer can pay the employee, for the duration of the accommodation, at that lower salary.

If the employee recovers sufficiently to resume their former position, they must be returned to it.

My office often receives calls from employees who have been absent as result of an illness or injury, but have now recovered and wish to return to work but are not permitted to do so.

That is very dangerous for an employer as the employee has a prima facie right to return as soon as they recover, even to a modified position that they can perform. An employer not permitting them to return will face both constructive dismissal and human rights allegations.

Lately, what my employer clients have expressed confusion about are employees who are cleared medically to return to work and do so. What should their expectations be and to what extent do they have to “listen to the employee” respecting their desired hours and capacities?

Many disability insurers recommend checking in with those employees, regularly tracking their progress. Although checking in regularly when returning to modified work is recommended, at the end of the day, again, the medical evidence prevails.