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Medical Information and the Duty to Accommodate

By Denise Workun on June 6, 2012

There is often confusion and miscommunication as to whether and to what extent an employer is entitled to medical information when an employee requests accommodation of a disability. Employers may legitimately ask for medical details that are relevant to determining appropriate accommodation measures in the workplace. However, employees often perceive such requests to be an overly-intrusive invasion of their personal privacy, amounting to workplace harassment.

In general, the longer an employee is absent from work due to illness or injury, the greater the employer's entitlement to access medical information about both the employee's prognosis and any medical restrictions on a return to work.

A May 2012 decision of the Human Rights Tribunal of Ontario provides guidance as to where the line of reasonable balance between the rights of employers and employees will be drawn.

In Cristiano v. Grand National Apparel Inc., the employer requested information concerning the extent of the employee's incapacity and the restrictions, if any, on her ability to perform the essential duties of her position. The employer also asked for a prognosis and the anticipated date on which the employee would be able to return to work. From the employee's perspective, the employer's refusal to be satisfied with notes from her family doctor verifying that she was "totally incapacitated" and its repeated requests for more detailed medical information, interfered with her recovery and constituted harassment.

The Tribunal decided that the employer was entitled to the information it had requested. Repeating the request in response to the employee's refusal to provide the information the employer was seeking did not amount to harassment. In the words of the Tribunal, "an employer is entitled to know enough to make some assessment of the bona fides of the leave request and sufficient information to determine what, if any, accommodations might be made to return their employee to the workplace, and if that is not possible, some estimate of how long the employee is expected to be absent."

Although each situation must be assessed on the facts, what is clear is that employers and employees should make every effort to keep lines of communication open to foster mutual understanding and to avoid the erosion of trust that can often derail the employment relationship.