Employers, employees, and unions each have a role to play in the accommodation process. Employers must explore the possible forms of accommodation, unions can help facilitate the accommodation process, and employees need to give their employers enough information to support their accommodation claim.
In the context of requests for accommodation in the workplace due to disability, employees are often resistant to sharing confidential medical information with their employers and will often cite privacy concerns as the main reason for withholding this information. While this situation will raise questions for employers on how to proceed, an Ontario labour arbitration decision, Complex Services Inc. (c.o.b. Casino Niagara) v. O.P.S.E.U., Local 278 (CAB Grievance), 217 LAC (4th) 1, (“Complex Services”) provided some much needed guidance on how to address these types of situations.
Complex Services – The Facts
In Complex Services, the employee had been on a medical leave due to a physical disability. When she returned to work, she claimed her return to work plan required specific accommodations that her employer did not provide. She alleged that she had a mental disability that required accommodation. This was the first time the employer was made aware of any mental disability. The employee refused her employer’s request to provide medical documentation to support her claim, arguing that the duty to accommodate did not require her to release her confidential medical information. The employer refused to allow her to return until she delivered medical documentation to support her new accommodation claim.
The employee then gave her employer two pieces of documentation: one was a note that confirmed she had seen a registered psychologist, the other was a list of the accommodations she required. The employer felt that this information was insufficient and requested more medical documentation to support her accommodation requests. The employee refused and the employer filed a grievance against the union and the employee for failing to fulfill their obligations with respect to the duty to accommodate. The union filed a grievance on behalf of the employee on the grounds of discrimination and harassment in response.
In finding in favour of the employer, the arbitrator in Complex Services answered three questions outlined below.
1. Can an employer ask to see confidential medical information without violating privacy?
The arbitrator held that employees have an obligation to provide sufficient information, including otherwise confidential medical information, to establish a need for accommodation.
2. What kind of medical information can an employer ask for?
The arbitrator set out a useful list of medical information that employers are entitled to ask for as part of the accommodation process:
- the nature of the illness and how it manifests as a disability (which may include diagnosis, particularly in cases of mental illness);
- Whether the disability (if not the illness) 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 basis for the medical conclusions (i.e. the nature of the illness and disability, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes in that respect); and
- 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. What can an employer do if an employee refuses to provide medical information?
The arbitrator found that it was reasonable for the employer to seek an independent review of the limited medical documentation the employee provided to support her alleged mental illness and the accommodations requested. Moreover, the arbitrator noted that it was unreasonable for the employee to refuse to permit her medical information to be used for that limited purpose. The arbitrator accepted that employees may have a right to keep medical information confidential. However, the arbitrator noted that if an employee exercises that right in a way that thwarts an employer’s efforts to comply with its duty to accommodate, then the employee must accept the consequences for doing so. Such consequences might include: loss of disability benefits, refusal to return to work, or termination of employment.