legal words
The arbitration board also discussed the impact of the Ontario
Court of Appeal’s recent decision in Jones v. Tsige. In that case,
a limited right to privacy was established in Ontario. The arbitration
board clearly stated, however, that Jones v. Tsige does not
stand for the proposition that asking for, or even demanding, that
employees disclose confidential medical information for legitimate
purposes constitutes an improper intrusion into an employee’s
privacy.
Complex Services is an important and useful decision for employers.
It establishes the following principles that HR professionals
should bear in mind when faced with employees making claims for
disability-related accommodation:
1. Legitimate requests for medical documentation to determine
the appropriate accommodation for an employee with a
disability will not be subject to an action for the invasion of
privacy.
2. Employers are entitled to request the following otherwise
confidential medical information, if necessary:
The nature of the illness and how it manifests as a
disability (which may include diagnosis, particularly in
cases of mental illness).
The basis for the medical conclusions, including the
examinations or tests performed (but not necessarily the
test results or clinical notes in that respect).
Whether the disability is permanent or temporary, and
the prognosis in that respect (i.e., the extent to which
improvement is anticipated, and the timeframe for
same).
The restrictions or limitations that flow from the
disability (i.e., a detailed synopsis of what the employee
can and cannot do in relation to the duties and
responsibilities of her normal job duties, and possible
alternative solutions).
The treatment, including medication (and possible side
effects), which may impact on the employee’s ability to
perform her job, or interact with management, other
employees or customers.
3. When an employee is unwilling to provide the necessary
medical information, an employer may deny disability benefits,
refuse a return to work or even (in certain cases) terminate
employment.
Employers should be aware, however, that they may only ask for
information that is necessary to accommodate the employee. An
employer may not, in every case, ask for all of the types of information
listed above. The proper scope of medical information that
an employer can ask for is entirely case-specific. It is therefore prudent
to seek advice from legal counsel if you are unsure whether
you have the right to ask for particular information in order to accommodate
an employee. ■
Malcolm MacKillop and Hendrik Nieuwland practise employment
law with the firm Shields O’Donnell MacKillop LLP of Toronto.
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