For most employers, it is a common practice or policy to require medical documentation when an employee is off from work for an extended period of time due to illness or injury. There is, however, a delicate balance that an employer must strike between obtaining information needed to accommodate the employee’s disability and respecting the privacy of the employee’s health records. So the question is, “what medical information should an employer be allowed to obtain from an employee who is sick or injured?”
Recently, the Ontario Human Rights Commission released its policy position on the scope of medical documentation that an employer ought to be able to request from an employee when a disability-related accommodation is requested. A link to the policy position can be found here.
According to the Commission, too little information can prevent appropriate accommodations from being meaningfully implemented. On the other hand, overly broad requests for medical information can undermine the dignity and privacy of people with disabilities.
In its policy position, the Commission provides guidance to employers and employees on the type and scope of medical information that can reasonably be sought to support an accommodation request. The documentation should set out 5 things:
- That the employee has a disability;
- That there are certain limitations or needs related to the disability;
- Whether the employee can perform the essential duties or requirements of the job, with or without accommodation;
- The type of accommodation that may be needed to allow the employee to fulfill those essential duties or requirements of the job; and
- Regular updates about when the employee can be expected to come back to work if the employee is on sick leave.
As stated by the Commission, the key to this process is that the information requested must be the least intrusive to the employee’s privacy while still giving the employer enough information to make informed decisions about the accommodation sought. To quote the Commission, “the focus should always be on the functional limitations associated with the disability, rather than a person’s diagnosis.”
An employer does not have a right to the employee’s confidential medical information. This includes the cause of the disability, its symptoms or its treatment, unless the complexity of the the employee’s disability necessitates more information in order to develop and implement an accommodation.
This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.
