February 18, 2004by Israel Foulon LLP
Question: One of our employees was absent for an extended period of time because of injuries to his back and shoulder. These injuries prevented the employee from performing his duties on the assembly line.
Until very recently, the employee was receiving insurance benefits. One week after the employee’s insurance benefits were cut off, he produced a doctor’s certificate stating he was fit to return to his regular work without any restrictions. I am suspicious of my employee and I would like to request some more information about his medical status. Are there any legal restrictions on obtaining information about an employee’s medical status? What types of medical information can I obtain about my employee? How can I obtain consent from my employee to release this medical information and what are my options for action if my employee refuses to provide me with consent?
Answer: The Ontario Human Rights Code governs an employer’s conduct regarding any requests for information about an employee’s medical status. The code prohibits discrimination on the basis of disability. Disability has been defined broadly and interpreted by the courts to include not only bodily injury and illness, but also discrimination on the basis of health or the perception of disability.
Under the code, employers have a duty to accommodate an employee up to the point of “undue hardship.” This means that with respect to an employee who may not be able to perform her job in the way that it is currently done, or as it has been done in the past, an employer is required to explore alternative ways of doing the job and accommodating the employee. The undue hardship test is a very difficult test to meet for employers. Courts will consider the cost, outside sources of funding and any health and safety requirements necessary for the accommodation, to determine if the employer has discharged their duty.
Before an employer makes a request for an employee’s medical information, the employer must consider whether or not the information is necessary or if the job can be modified to accommodate the employee’s suspected disability. On the one hand, if an employer requests an unnecessary medical examination or unnecessary medical information, it will potentially be exposing itself to allegations of discrimination.
On the other, before an employer is required to allow an employee to return to work and before the employer can make decisions regarding accommodation, the employer is entitled to know the extent of the employee’s ability to work and exactly what types of accommodations are required.
Invariably situations will arise where an employer has a legitimate interest in the medical status of an employee. Generally an employer has no right to compel disclosure of an employee’s personal medical information unless such right is provided for by way of consent, in accordance with a statute, a collective agreement or an employment contract.
In the absence of access to information by way of consent, statute, or contract, an employer must act sensitively and prudently, and make a genuine effort to fulfil all of its obligations under the code. This will minimize an employer’s exposure to allegations of discrimination if an employer decides that medical information must necessarily, but not legally, be disclosed.
Employers who have a contractual or statutory right to an employee’s medical information must also ensure it acts prudently. Employers will be expected to exercise their right to access an employee’s medical information in a “fair and reasonable” manner. Therefore employers should be careful not to compel disclosure of an employee’s medical information except where they have a bona fide reason for believing it is necessary.
The best method for an employer to obtain an employee’s medical information is by way of consent. Where an employer has a right to access medical information by way of statue or contract, it is still advisable for the employer to obtain the employee’s express written consent. This will avoid workplace antagonism and it will minimize the likelihood of an employer having to explain itself before a court, tribunal or arbitrator. In the event the employee refuses to consent to the release of the medical information, an employer may still be able to compel disclosure.
The employer may argue the employee is not disabled and, therefore, there is no obligation to accommodate her medical restrictions. The employee will likely have a difficult time making out a case that the employer failed to accommodate them when the employee refuses to provide the medical information necessary for the employer to determine how to deal with the situation.
Employers must also bear in mind their obligations under privacy legislation. Federal and provincial privacy legislation regulates and limits how personal information is collected, used and disclosed by an organization, and provides employees with rights of access and enforcement of their privacy rights. (For a more in-depth look at the impact of privacy legislation on provincially-regulated workplaces, please refer to the article at page 3094 in issue #396. For a look at B.C.’s privacy law, see page 3134 in issue #401 and page 3142 in issue #402.)
As noted above, employers must govern requests for access to employee medical information in accordance with the Ontario Human Rights Code. But this does not mean an employer should not pursue detailed medical documentation to satisfy themselves an employee is truly capable of returning to work and that this employee will not jeopardize their own health and safety or the health and safety of other employees by returning to work.
Nor does it prevent an employer from requesting information regarding all of the employee’s restrictions, including what workplace activities the employee can and cannot perform, and what steps must be taken to accommodate this employee if necessary.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today