Canada: Employee Required To Produce His Medical File To Employer In Accommodation Grievance

Last Updated: November 17 2015
Article by Adrian Miedema

After an employee's union grieved that the employer had failed to return him to work "notwithstanding that he has provided all requested medical information", the employee has been ordered to produce much of his medical file to the employer.

The employee suffered a non-occupational injury and was off work for approximately seven months. The employee's physician and the employer's Occupational Health and Safety Services Manager then exchanged correspondence regarding his gradual return to work. The employee provided six medical notes from his physician regarding his restrictions and accommodation requirements, but refused to provide the remainder of the physician's medical file on the employee. For instance, one of the physician's notes stated that the employee "has been cleared to return to work [but] due to the prolonged commute to and from work it is recommended that he re-integrate as follows: 6 hours per day for 4 weeks. He will be re-assessed in 3 weeks to address his medical condition."

The arbitrator stated that employees and unions should not be ordered to produce medical documentation unless there is a clear nexus between that documentation and the genuine factual matters in dispute in the grievance.

In this case, the union would rely on the six medical notes in support of its position that the employer should have accepted those notes on their face when constructing a return to work plan for the employee. The arbitrator said that because the union has placed those notes before the employer, the union has:

"opened the door to the proper admission of all of the documentation that the author of the medical reports relied upon in arriving at the conclusions stated in those reports, and any other documentation in the Grievor's medical file arguably related thereto. This may include information evidencing the physician's knowledge of the physical demands of the Grievor's job, records of meetings with the Grievor (including what the Grievor is reported to have said to his physician on the matter), clinical notes of physical examinations, testing and other assessments the physician may have conducted in coming to the specific conclusions or recommendations reflected by the medial notes presented to the Employer. Such documentation, to the extent it may exist, does not expose the Grievor to an unreasonable intrusion into his private medical condition that is outside of the scope of the matters placed directly in issue by the Grievor's own submission of his doctor's medical notes, and thus the Employer's production request is not a "fishing expedition" as suggested by the Union."

As such, the employee was required to provide the employer with all "arguably relevant" medical documents in his doctor's file, which the arbitrator restricted to those "clinical notes, records of examinations, tests, descriptions by the Grievor, and the like, forming the basis of [the physician's] conclusions and/or recommendations in the six medical notes" that the employee voluntarily provided to the employer.

Dufferin Concrete v Teamsters Local Union Local 230, 2015 CanLII 68945 (ON LA)

For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com

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