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November 29, 2012

Seeking medical information to support an accommodation claim does not violate an employee’s privacy

Authors Malcolm MacKillop and Hendrik Nieuwland

It is well established that employers, employees and unions must comply with the duty to accommodate employees with disabilities. Employers are required to take an active role in investigating various forms of possible accommodation, unions have a joint responsibility to facilitate accommodation, and employees must provide sufficient information about the disability that requires accommodation.

In many cases employees are reluctant to provide confidential medical information to support their accommodation claim, typically citing privacy concerns. When this happens, employershave many questions about how to proceed. Can an employer ask to see confidential medical information without violating privacy? What kind of medical information can an employer ask for? And what can the employer do if the employee refuses to provide it? A recent Ontario labour arbitration decision, called Complex Services v. O.P.S.E.U., Local 278 (2012), 217 L.A.C. (4th) 1, provides answers to theseimportant questions.

Before addressing these three questions, a review of the facts facing the arbitrator is warranted. In Complex Services, the employee had been on medical leave for a physical disability. When she returned to work, the employee claimed her return to work plan required specific accommodations that the employer had failed to provide. In particular, the employee allegedthat she had a mental disability that required accommodation. This was the first time the employer was made aware of any alleged mental disability. So the employer asked the employee to provide medical documentation to support her claim. The employee refused, saying the duty to accommodate did not require her to release her confidential medical records. The employer therefore refused to allow theemployee to return to work prior todelivering medical information to support her new accommodation claim.

The employee responded by providing two documents: a note that simply said the employee had seen a registered psychologist, and a list of the mental illness accommodations she required. The employer was not satisfied that this information supported the employee’s new claim, and requested additional medical documentation. The employee refused to provide it. The employer therefore took the rare step of filing a grievance against the union and the employee, alleging they had not met their obligations with respect to the accommodation process. In response, the union filed a grievance on behalf of the employee alleging discrimination and harassment.

The arbitrator found in favour of the employer. In doing so, the arbitrator provided answers to the three important questions identified above.

1. Can an employer ask to see confidential medical information without violating privacy? 
The arbitrator held that employees have an obligation to provide sufficient information, including otherwise confidential medical information, to establish a need for accommodation. The arbitrator also discussed the impact of the Ontario Court of Appeal’s recent decision in Jones v. Tsige, which established a limited right to privacy in Ontario. The arbitrator was quick to note, however, that an employer does not improperly intrude on an employee’s privacy rights by asking for, or even demanding, that the employee disclose confidential medical information to support an accommodation claim.

2. What kind of medical information can an employer ask for?
The arbitrator set out a useful list of medical information that employers are entitled to ask for as part of the accommodation process: a) the nature of the illness and how it manifests as a disability (which may include diagnosis, particularly in cases of mental illness); b) Whether the disability (if not the illness) is permanent or temporary, and the prognosis in that respect (i.e. the extent to which improvement is anticipated, and the time frame for same); c) The restrictions or limitations that flow from the disability (i.e. a detailed synopsis of what the employee can and cannot do in relation to the duties and responsibilities of her normal job duties, and possible alternative solutions); d) The basis for the medical conclusions (i.e. the nature of the illness and disability, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes in that respect); and e) The treatment, including medication (and possible side effects) which may impact on the employee’s ability to perform her job, or interact with management, other employees, or customers.

3. What can an employer do if an employee refuses to provide medical information?
The arbitrator found that it was reasonable for the employer to seek an independent review of the limited medical documentation supporting the employee’s alleged mental illness and the accommodations she requested. The arbitrator said that it was unreasonable for the employee to refuse to permit her medical information to be used for that limited purpose. However, the arbitrator went on to say that employees may have a right to keep medical information confidential, but where they exercise that right in a way that thwarts an employer’s efforts to comply with its duty to accommodate, the employee must accept the consequences. Those consequences may include the loss of disability benefits, a refusal to permit a return to work until the necessary information is provided, and even termination.

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