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Many employers have often had the experience of receiving a
vague doctor's note from an employee that reads something along
the lines of, "this individual is unable to work for X
weeks". Employers are left wondering: Why? Can I be sure this
is legitimate? Is the employee likely to return after X weeks? Will
the employee need anything when she/he returns?
What information is an employer entitled to? How far can an
employer push back on a vague note such as this?
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)
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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