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By Malcolm J. MacKillop and Hendrik T. Nieuwland What can an employer ask for? Seeking medical information for accommodation doesn't violate privacy. E mployers need medical information in order to develop appropriate accommodations for employees with disabilities. However, employees are often reluctant to provide medical information, typically citing confidentiality and privacy concerns. When this happens, employers have many questions about how to proceed. Can an employer ask to see confidential medical information without violating privacy? What kind of medical information can an employer ask for? What can the employer do if the employee refuses to provide it? A recent Ontario labour arbitration decision, Complex Services v. O.P.S.E.U., Local 278, provides answers to these important questions. Before addressing these three questions, a review of the facts is warranted. In Complex Services, the employee had been on medical leave for a physical disability. When she returned to work, the employee claimed her return to work plan required specific accommodations the employer had not provided. In particular, the employee alleged (for the first time) she had a mental disability that required accommodation. The employer asked the employee to provide supporting medical documentation. The employee refused, so the employer refused to allow the employee to return to work. The employee responded by providing two documents: a note that simply said the employee had seen a registered psychologist, and a list of the mental illness accommodations she required. The employer was not satisfied this informa- tion supported the employee's new claim, and requested additional medical documentation. The employee refused to provide it. The employer therefore took the rare step of filing a grievance against the union and the employee, alleging they had not met their obligations with respect to the accommodation process. In response, the union filed a grievance on behalf of the employee alleging discrimination and harassment. The arbitrator found in favour of the employer. In doing so, the arbitrator provided answers to the three important questions identified above. 1. Can an employer ask to see confidential medical information without violating privacy? The arbitrator held that employees should provide sufficient information, including otherwise confidential medical information, to establish a need for accommodation. The arbitrator also discussed the impact of the Ontario Court of Appeal's recent decision in Jones v. Tsige, which established a limited right to privacy in Ontario. The arbitrator was quick to note, however, that an employer does not improperly intrude on an employee's privacy rights by asking for, or even demanding, the employee disclose confidential medical information to support an accommodation claim. 2. What kind of medical information can an employer ask for? The arbitrator set out a useful list of medical information employers are entitled to ask for as part of the accommodation process: a)The nature of the illness and how it manifests as a disability (which may include diagnosis, particularly in cases of mental illness); b) 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 time frame for same); c) 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 regular job, and possible alternative solutions); d) 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 e) The treatment, including medication (and possible side effects), that 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 supporting the employee's alleged mental illness and the accommodations she requested. The arbitrator said it was unreasonable for the employee to refuse to permit her medical information to be used for that limited purpose. However, the arbitrator went on to say employees may have a right to keep medical information confidential, but where they exercise that right in a way that thwarts an employer's efforts to comply with its duty to accommodate, the employee must accept the consequences. Those consequences may include the loss of disability benefits, a refusal to permit a return to work until the necessary information is delivered, and even termination. IH Malcolm MacKillop and Hendrik Nieuwland practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto. w w w. c a n a d i a n law y er m a g . c o m / i n h o u s E February 2013 • 13

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