What a cancer survivor's legal win means for workers returning after illness

How far are workplaces supposed to accommodate the medical needs of employees? Lawyers and HR practitioners weigh in.

SINGAPORE: A woman clashed with her long-time employer, an international school, over work adjustments she needed after returning from months of treatment for stage three nose cancer.

The administrative assistant encountered pushback when requesting to work from home twice a week, leave work early some days to attend rehabilitation, and perform only light duties.

In a ruling published on Aug 12, an Employment Claims Tribunal awarded her S$20,000 (US$15,600) for wrongful dismissal. It found that the school had essentially forced her to resign to protect her health.

Lawyers said this ruling is significant as it spells out the legal obligations for employers to take reasonable steps to ensure the health and well-being of employees outside the context of workplace injuries and accidents.

CNA breaks down what this means for workers with health needs and their employers.

What is an employer supposed to do for me if I am returning to work after illness or injury?

The school breached its duty to take reasonable care of the woman’s health and safety – a duty implied in her employment contract.

“Fitness to return to work does not mean fitness to work as one did before,” the court noted.

Lawyers said this duty of care has three aspects for employers – to inquire about the facts, consider them and respond appropriately.

“Once matters of health and safety are drawn to your attention, then you ought to inquire into the matter,” said Mr Nicholas Ngo, managing associate at Simmons & Simmons.

This includes investigating the facts, consulting the employee, reviewing the recovery trajectory and taking sensible steps to understand the issue, he said.

As those facts emerge, the employer must consider them and exercise practical judgment about what to do.

This involves asking themselves what an “ordinarily prudent” employer would do in light of the information and medical advice available, said Mr Ngo.

The employer must then respond appropriately, which might entail reasonable accommodations for the worker.

National Trades Union Congress (NTUC) assistant secretary-general Patrick Tay said employers should allow workers who need reasonable accommodations for health issues to continue in their current roles, but with appropriate adjustments. This includes flexible work arrangements, such as working from home where possible.

Workers who cannot continue effectively in their current roles due to health reasons should be offered alternative roles in the organisation where possible, said Mr Tay, who is also NTUC’s director of strategy and legal services.

“Only in the most extreme circumstances should employers consider termination of the employment relationship, due to an employee’s inability to continue working in the same role, and this must be done appropriately through sound and reasonable medical board-out policies,” he said.

This includes getting a medical professional to certify that the employee can no longer work in the current role for the foreseeable future. Appropriate compensation should also be paid out to the employee, said Mr Tay.

As an employer, must I accommodate every health-related request a worker makes?

No, the court made it clear: “The duty does not demand that an employer capitulate to every request at the expense of its legitimate business requirements.”

It also said dismissal on the grounds of an employee’s medical condition and needs may be considered a just cause or excuse under the Employment Act.

But the duty of care does call on the employer to make its inquiries and “genuinely explore the options before deciding on a particular route”, said lawyer Mr Ngo.

In this case, the court accepted that the school genuinely had a harder time running the department when the woman was not in the office, and that accommodating her by hiring a part-timer or giving other staff more duties would bring costs and disruptions.

But aside from its own business requirements, an ordinarily prudent employer would also consider the worker’s “medical status and limitations, the likely trajectory of her recovery, the types of accommodation that her condition might require, the risk to her health if accommodation were refused, the impact of any such arrangements on her colleagues, and whether suitable alternatives existed”, said the court.

“None of this can be done without genuine engagement with the employee,” added the court.

It found that the school breached its duty of care when it left “no room for negotiation, and no genuine willingness to consider or discuss” the woman’s health concerns. What happened after only deepened this breach.

The overarching approach employers should take is to navigate the matter with “care, sensitivity, and respect for its employee as a human being”.

“An employee with a medical condition or needs requiring accommodation should not be viewed as a broken machine to be written off from the organisation’s human inventory and replaced by a healthier procurement,” said the court.

What does this mean for organisations’ flexible work policies?

The school had a policy that educational support staff were not eligible for flexible work arrangements during term time. It gave this as a basis for denying the woman’s work-from-home request.

But the court said: “An employer cannot take refuge in the letter of a policy of its own making to escape the reach of its duties.”

Under tripartite guidelines, employers in Singapore must have a process in place to properly consider workers’ flexible work arrangement requests.

NTUC’s Mr Tay pointed out that these guidelines give guidance on how to come to a “reasonable and equitable decision” when workers need to modify their work arrangements.

Lawyer Christine Ong, partner at Virtus Law, said the cancer survivor’s case shows there cannot simply be a “blanket” application of an employer’s flexible work policy.

Instead, the employer has to base its assessment of such requests on individual circumstances and any specific vulnerabilities the worker faces.

“It appears that there is some sort of higher expectation when the employee has medical needs,” she said.

“It seems to suggest that employers should be a bit more flexible, a bit more accommodating even if you have specific internal policies which say you cannot have the flexible working arrangement.”

How should HR treat medical advice and recommendations related to workers?

The woman in this case had memos from her oncologist and occupational therapist describing her health condition and recommending light duties.

The school challenged these documents and insisted that the medical advice had to take the form of a medical certificate.

The court found that this was just a pretext for the school to avoid finding out more about and considering the woman’s health needs.

“One clear lesson is not to let a policy or documentation requirement become the focus when the real question is what the employee needs to return to work safely and effectively,” said Ms Sally Lee, the Institute for Human Resource Professionals’ (IHRP) head of people and administration.

“HR can consider the substance of medical advice rather than simply whether it meets a particular format or wording.”

She added that HR practitioners should be mindful of how they engage medical professionals.

“There is a distinction between seeking clarification on medical advice and framing questions in a way that could lead towards a particular conclusion,” she said.

“An objective and open approach can help ensure that medical input is considered appropriately.”

NTUC’s Mr Tay said employers should not attempt to “pressure or distort” recommendations from medical professionals based solely on their operational needs.

In this case, the school engaged another doctor to assess if the woman was medically fit to return to work. He recommended light duties and working a four-day week with one day from home.

The school’s HR executive wrote back asking if this was “just a recommendation” or “mandatory”, adding that the woman “cannot work from home during school term” as she was “in a student facing role”.

The court viewed this not as a genuine attempt to clarify the doctor’s advice, but as questions framed to press him to retract his advice.

“If you're going to keep pressing doctors and medical professionals until their opinion changes to something you like, that won’t cast you in a good light,” said lawyer Mr Ngo, adding that “this could all come out as evidence” if the case goes to court.

What else is good HR practice when it comes to workers’ health needs?

IHRP’s Ms Lee said the takeaway is for HR practitioners to understand the individual worker’s situation, consider medical advice carefully, engage the employee genuinely and work through the practical options available.

“HR needs to be able to understand medical advice, have difficult conversations with sensitivity and apply policies with good judgment,” she said.

“Good HR judgment involves balancing the needs of the individual with those of the organisation, while ensuring that decisions are fair, considered and grounded in the circumstances at hand.”

A supportive culture at work is not demonstrated by a policy or statement of intent alone, she added.

“It is reflected in the decisions and actions taken in practice.”

What if I’m not recovering from a major illness, but have other health needs?

Lawyers said that the cancer survivor’s case has parallels with how employers are expected to respond to other types of health conditions.

Ms Ong, who also sits on the board of charity Fertility Support SG, said a similar duty of care could apply to workers struggling with infertility.

“It could be someone going through fertility treatments as well, and then if (the worker) brings it up, then the employer would have the duty to look into the issue and respond to it if there are concerns,” she said.

The duty of care does not seem confined to those returning to work after treatment, but could be for people undergoing treatment while working, or suffering from chronic but less life-threatening conditions, she said.

“Someone is going through something. Their needs need to be accommodated because of medical treatment.

“Same as if they’re going through fertility treatments, then they need to go off early for appointments, they need to take injections. It’s about being accommodating to these various medical needs that they have,” she said.

Mr Ngo pointed to an upcoming tripartite advisory on reasonable accommodations for persons with disabilities, which could contain “practical guidance” for accommodating workers returning from major illness too.

The advisory is being developed by the manpower ministry with employers, workers’ unions and social service agencies.

Earlier this year, NTUC asked the ministry to consider expanding the advisory to explicitly cover workers recovering from injuries and serious health conditions.

The manpower ministry said it would review the support system for recovering employees who are returning to work, including how to encourage and equip employers to accommodate them.

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