Written on behalf of Peter McSherry
The Ontario Human Rights Commission (OHRC) has just released a policy statement on the type of medical information that should be expected by employers, and should be provided by employees in a situation where a disability related accommodate request is made by an employee.
Duty to Accommodate
Under the province’s Human Rights Code, employers and unions have a legal duty to accommodate the needs of employees with disabilities who may be adversely affected by a rule or requirement in the workplace.
Accommodation in the workplace can involve making company policies, procedures, rules, and practices more flexible to ensure that those with disabilities are able to participate, or it can involve making changes to the physical work environment to remove barriers for employees with disabilities. Examples of accommodation include adjustments to work schedules or job duties, specialized equipment, or modifications to workspaces.
The employer and union must uphold their duty to accommodate up to the point of “undue hardship”. There are only three legally recognized grounds of undue hardship under the Code:
- Cost of the accommodation measures;
- Outside sources of funding;
- Health and safety implications and requirements.
The Role of Physicians and Other Medical Professionals in the Accommodation Process
Doctors, nurses, and other medical professionals play a critical role when employees with disabilities seek accommodation.
In order to implement appropriate and effective accommodation, employers often seek and rely on the expertise of doctors and others in order to understand the functional limitations and needs associated with a disability. Likewise, employees seeking accommodation rely on doctors and others in the medical field to provide clear information about their disability and related needs.
The Type and Scope of Medical Information Required
In general, an employer does not have the right to know about your confidential medical information, such as your diagnosis, the cause of your disability, or any symptoms or treatment, unless those details clearly relate to the accommodation being requested. If your needs are unclear and additional information is required, the employer can request additional information, within reason.
However, many employers are confused about the type and scope of medical information that needs to be provided in order to support a request for accommodation. There have been situations where employers have requested personal information that goes above and beyond what is required to support an accommodation request, including asking employees for specific diagnostic information. Such overly broad requests are problematic and undermine both the privacy and the dignity of employees with disabilities.
In September 2016, the OHRC released and updated disability policy, setting out important guidelines about the role of medical information in the accommodation process, and specifically providing detailed guidance on the type and scope of information that must be provided.
Medical information provided in support of an accommodation request must include:
- The fact that the person has a disability;
- The limitations and needs associated with the disability;
- Whether the employee can perform the essential duties or requirements of their job;
- Regular updates about an employee’s disability, including information about when that person expects to return to work.
Where additional information is required, any information requested must strike a balance between employee privacy rights, and the need for the employer to be able to make an informed decision about the accommodation.
If you have been injured, ill, and/or have a condition or disability and reasonable accommodations can help you better perform your job, experienced Guelph employment lawyer Peter McSherry can advocate for your rights under human rights legislation. Contact me today by phone at 519-821-5465 or by e-mail to schedule a consultation.