IN MANY CASES EMPLOYEES ARE RELUCTANT TO PROVIDE WHAT THEY VIEW TO
BE CONFIDENTIAL MEDICAL INFORMATION, OFTEN CITING PRIVACY CONCERNS.
WHEN THIS HAPPENS, IT MAY NOT BE CLEAR TO EMPLOYERS HOW TO PROCEED.
employer denied that the return to work plan required these new
accommodations, and requested that the grievor provide medical
documentation in support of her new claim. The grievor refused,
stating that the duty to accommodate did not require her to release
her confidential medical records. The employer made several
additional requests for medical documentation, all of which were
refused by the grievor. The employer eventually informed the
grievor that she would not be allowed to return to work without
providing the necessary medical information to support the request
for further accommodation.
The grievor responded by providing the employer with very
limited medical documentation, information that she had seen a
registered psychologist, and a list of the mental illness accommodations
that she alleged were required. Although the employer was
in the process of accommodating the grievor’s physical disability,
this was the first request the employer received regarding the accommodation
of the grievor’s alleged mental illness. The employer
requested additional information, and the grievor refused. The
employer filed a grievance alleging that the union and the grievor
had not met their obligations with respect to the accommodation
process. The union filed a grievance on behalf of the grievor alleging
discrimination and harassment.
At arbitration, it was held that employees have an obligation
to provide sufficient information, including otherwise confidential
medical information, to establish the accommodation required. It
was reasonable for the employer in this case to seek an independent
review of the medical documentation supporting the grievor’s
assertion that she had a mental illness and that she required the
specific accommodations that she requested, and it was unreasonable
for the grievor to refuse to permit her medical information to
be used for that limited purpose.
The arbitration board stated that although employees have a
right to keep medical information confidential, where employees
exercise that right in a way that thwarts an employer’s efforts to
comply with the duty to accommodate, employees must accept the
consequences. The consequences may include the loss of disability
benefits, a refusal to permit a return to work until the necessary information
is provided and even the loss of employment.
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HRPATODAY.CA ❚ FEBRUARY 2015 ❚ 15