One of the major challenges facing employers in Canada today is
the management of employee disabilities. More and more, it seems,
employers are required by human rights and workers compensation
legislation to deal with and accommodate an ever-growing array of
physical and mental disabilities suffered by workers.
Canadian courts, human rights tribunals and workers compensation
boards have recognized that the employee, no less than the
employer, has a role to play in the accommodation effort. The
employee's duties include:
informing the employer of the need for accommodation;
co-operating with the employer's accommodation plans;
co-operating with the treatment plans developed by treating
making reasonable efforts to improve health; and
providing medical information that is reasonable and necessary
in the circumstances.
In almost every case where an employee claims to be unable to
perform her job duties due to a disability, the employer will need
to obtain medical information. The employer requires this
information in order to determine whether the employee requires
accommodation, what the appropriate form of accommodation may be,
and whether the employer will incur undue hardship in providing
such accommodation. Accommodation, after all, encompasses a broad
range of employer responses and obligations, including providing
time off from work, sick pay, modified duties, graduated return to
work plans, and adaptive devices. Since the vast majority of
employers do not have "in-house" medical expertise,
employers must obtain medical information from the medical
professionals who treat the employee claiming to be ill or
The development of privacy law in a number of jurisdictions in
Canada has added a layer of complication to the task of obtaining
medical information about employees. Clearly, medical information
about an individual is "personal" information, and
privacy law is designed to protect "personal"
information. Indeed, medical information tends to rank among the
most sensitive personal information, and is generally afforded a
great deal of protection under privacy laws. Medical professionals
are obligated by legislation to protect their patients'
In this paper, we will review the sources of an employee's
right to privacy in Ontario in regards to medical documentation,
both in legislation and at common law, and how this right has been
balanced against the employer's need for information in order
to accommodate the needs of employees and maintain a safe work
environment. We will also explore what an employer can do to obtain
the necessary medical information about an employee's alleged
disability that is required to manage the employee's disability
claims and the accommodation process.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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