Employee absenteeism is one of the most perplexing and difficult
issues facing employers today. It is also one of the most
costly. In 2013, the Conference Board of Canada reported that the
Canadian economy lost an estimated $16.6 billion in 2012 due to
employee absenteeism alone. The Board, surprisingly, also
found that less than half of employers were tracking absenteeism in
their respective workplaces and their employees' reasons.
Although concerns with protecting employee privacy are sometimes
raised as reasons why no medical requests are even made of
employees (or why an employee's refusal to provide the employer
with medical information is simply accepted), the reality is that
privacy laws permit employers to request medical information from
an employee that is reasonably necessary to determine whether an
absence from work is legitimate and whether a duty to accommodate
the employee exists (and to what extent). In fact, employees
who refuse to respond to these medical requests may face a number
of consequences, including termination of their employment for just
So, what kinds of medical requests are reasonable?
The answer depends on the context (which includes what the
parties may already have agreed to in their employment agreement),
but adjudicators have traditionally found a very wide range of
medical requests to be permissible, including questions
the employee's prognosis for full or partial recovery;
what duties the employee can and cannot perform (i.e. the
employee's functional capabilities, limitations, and
whether the employee was prescribed or recommended treatment
and whether the employee is following the course of treatment as
prescribed or recommended;
the employee's expected date of return, or the expected
duration of the absence; and
evidence that the employee is fit to return to his or her
duties before a return to work occurs.
The latter request is particularly important for employers faced
with facilitating a return to work after a long-term absence.
Employers will usually want to ensure that the employee's
return to work is medically approved and any required
accommodations explored before the return happens.
The kinds of medical requests that adjudicators have been found
to be unreasonable (at least at first instance) is equally as fact
dependent (including based on what the parties have already agreed
to and what the employee has already voluntarily disclosed to the
employer about their condition), but adjudicators have challenged
employers requesting the following:
the employee's diagnosis;
the kind of treatment the employee is receiving;
direct contact with the employee's doctor; and
that the employee see a doctor of the employer's
Getting the right information, however, is often a process and
is context dependent. In more complicated cases, more probing
questions and follow up will be appropriate, including in these
"usually off limit" categories of medical requests. Thus,
adjudicators have recognized exceptions and permitted employers to
make these kinds of requests in a variety of circumstances (e.g.
where the information is needed for the accommodation process, to
mitigate a serious workplace safety issue, or to address
inconsistencies in medical reports received from the employee's
doctor). Given the potential challenges to these requests,
employers are best to first consider whether these exceptions
It remains to be seen what 2016 has in store for employers, but
employers can take comfort in knowing that they can, and indeed may
be legally required to, ask for something more than just the
one-line prescription pad note.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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