By Malcolm MacKillop and Hendrik Nieuwland
What employers need to consider when employees make claims for disability-related accommodation
You pick up the phone and hear this: “I just saw my doctor after returning from my trip to West Africa. She says there is a risk I might have Ebola. She instructed me to go into quarantine. Is the company okay with that?” Receiving a call like this is unfortunately a real possibility for human resources professionals these days. Telling the employee "Yes, you can stay away from work" in these circumstances is, of course, the prudent, sensible and compassionate choice. It is also the employer’s legal obligation (assuming the employee is telling the truth). While no human rights tribunal in Canada has had to rule on the matter, Ebola is definitely a “disability” under human rights legislation.
The fact an employee may have a rare illness does not fundamentally change the rules for accommodating that employee. It is well established that employers, employees and unions must comply with the duty to accommodate employees with disabilities. Employers are required to take an active role in investigating various forms of possible accommodation, unions have a joint responsibility to facilitate accommodation and, importantly, employees must provide sufficient information about the disability that requires accommodation.
So what does this practically mean for an employer faced with an employee claiming to have a rare illness, such as Ebola? Can an employer ask for evidence that the employee has, in fact, been diagnosed with Ebola? Can an employer require proof that quarantine has been ordered? Can an employer require information on prognosis and a timeline for a safe return to work?
Fortunately, an employer can be confident in its right to make these inquiries due to the Ontario arbitration decision Complex Services v. O.P.S.E.U., Local 278, 217 L.A.C. (4th) 1 (“Complex Services”). Complex Services recognizes that without sufficient information from employees, it generally is not possible for employers to provide safe and appropriate accommodation in the workplace. However, 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. Can an employer impose consequences, such as refusing to continue benefits (like STD payments), or refusing to allow the employee to return to work? Complex Services tells us the answer is “yes.”
In Complex Services, the grievor had been on medical leave for a physical disability when she returned to work. Upon her return, the grievor claimed that her return to work plan required specific new accommodations that the employer had yet to provide. The 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.
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 time frame 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.