Information to be Provided

Courts and tribunals have generally determined that the following is information that the employer is entitled to1:

• general nature of the illness and how it manifests as a disability;
• prognosis and particularly whether the illness or injury is permanent or temporary;
• expected date of return to work;
• the treatment including medication and possible side effects that may impact on the employee's ability to perform her/his job or interact with customers or co-workers;
• whether the person can perform the essential duties or requirements of the job, with or without accommodation;
• what restrictions, limits or needs are associated with the disability;
• whether accommodations are needed and what accommodations may be required upon a return to work including what the employee can and cannot do in relation to the duties and responsibilities of her/his regular job and possible alternative solutions; and
• regular updates about when the person expects to come back to work, if she/he is on leave.

Courts and tribunals have generally determined that the following is information that the employer is not entitled to:

• diagnosis (which has generally been off limits as the focus is to be on the person's functional limitations and a diagnosis can label an employee and not provide the necessary information to address the employee's specific needs).

The Ontario Human Rights Commission ("OHRC") has also published a policy on this issue in September of 2016, called Policy on ableism and discrimination based on disability and is found at http://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability. This policy was developed to provide guidance to employers and employees on how to successfully strike the balance between demanding overly broad requests that may undermine the privacy of employees with disabilities, with the duty of an employee to engage in their process of accommodation and to provide sufficient information to allow the employer to do so. The OHRC also circulated this policy amongst the College of Physicians and Surgeons and the Ontario Medical Association, as health care providers are a key party to this accommodation process.

How to Request the Information

The general rule for employers in requesting medical information is to use the least intrusive measure to obtain the medical information necessary to meet its accommodation requirements. Generally, we would typically suggest that the request be made to the employee, to take to her/his own doctor. If the employee has provided consent to the employer to communicate directly with her/his physician, then such forms can be provided directly to the physician. A medical note or a further medical note can be requested, but where the issues are more complicated, this information can be sought by way of a Functional Abilities Form or a Questionnaire for the employee to take to her/his physician to have filled out.

Independent Medical Examinations

As an employer, if you question the leave or the accommodation requested, there are some measures you can take. You must have reasonable grounds to challenge the medical evidence that you were presented with, such as the information being insufficient and the employee fails to provide the necessary further details or the medical information itself is contradictory. It cannot be a situation of simply attempting to second guess the employee's request for accommodation. In such cases, it may be reasonable for the employer to require the employee to attend at an Independent Medical Examination ("IME"). An effort should be made to pick a physician agreeable to both parties. Only where that process has failed, can the employer unilaterally choose the examiner. 2

The main lesson for employers in this area is to ensure you have the information you need to appropriately accommodate an employee's disability, but to use the least intrusive measure possible to obtain it.

Footnotes

1 Complex Services v. O.P.S.E.U., Local 278 (2012, Ontario)

2 Telus Communications Co. v. T.W.O. (2010, Federal)

Note: This a reprint of an article by Jennifer Costin of Siskinds LLP.