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Date:
2012.11.15

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THE EMPLOYERS' EDGE

Reasonable Requests for Medical Information NOT Harassment says Ontario Human Rights Tribunal

Practice Areas: Employment LitigationHuman Rights

Accommodating an employee with medical limitations can be a difficult proposition for employers.  On one hand, an employer has a legal obligation to provide accommodation that will allow the employee to do productive work, and on the other hand, the employer also has to respect the employee’s privacy and the sensitive nature of coping with a disability.  Accommodation can be a tricky balancing act, however, the law is clear that an employer’s repeated requests for reasonable medical information does not amount to harassment and an employee is responsible to co-operate in their accommodation.

In Cristiano v. Grand National Apparel Inc., (2012 HRTO 991) Ms. Cristiano complained to the Human Rights Tribunal of Ontario that she was the victim of discrimination in the workplace.  The alleged harassment took the form of persistent demands for information regarding Ms. Cristiano’s disability, before the employer ultimately terminated her.

The employer asserted that Ms. Cristiano was terminated for reasons unrelated to her disability, and that the inquiries were a legitimate component of the company’s duty to accommodate.   The employer stated that it was only seeking the information it needed to justify and authorize a leave of absence, and to facilitate and accommodate Ms. Cristiano’s return to work if she was able to do so.

The Ontario Human Rights Code defines “Harassment” as including “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.  The Tribunal in this case decided that there was no harassment and the employer’s requests for information were reasonable in all respects.

Ms. Cristiano commenced her leave by substantiating it only with a note from her family doctor stating that she was totally incapacitated from work, and was “off work until further notice”.  In response, the employer asked the employee for medical information from her doctor concerning the following: whether she was totally disabled from work; if she was not totally disabled, then what limitations were on her ability to perform her work duties; the date her disability commenced; and a prognosis for her return to work on a regular basis both with and without limitations.

Ms. Cristiano did not provide this information, but instead stated that she would be seeing a specialist who could better inform the employer.  The employer awaited the information from the specialist, but after following up with Ms. Cristiano, only received correspondence stating that said information was “personal and private”, and would not be provided.  She instead provided another note from her family doctor saying only that she was “completely incapacitated” and “off work for medical reasons”.  Further requests by the employer for medical information from Ms. Cristiano went unanswered.

The Tribunal noted that there are limits on the information an employer can require from its employees who take a medical leave – for example, an employer is generally not entitled to any diagnostic information, only prognostic information.  Despite these limits, and despite the general desire to respect an employee’s privacy in health matters, an employer is entitled to sufficient information from an employee to accommodate them appropriately.  The Tribunal stated:

But 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.

The Tribunal concluded that the requests for information could not have been seen as unreasonable, could not reasonably have been seen as unwelcome, and accordingly could not have constituted harassment.  Ms. Cristiano’s complaint was therefore dismissed.

The law is clear that employers and employees have to co-operate in discharging their obligations under the accommodation process.  An employer must take steps to accommodate the employee’s limitations to the point of undue hardship, and the employee must provide the employer with the reasonable medical information required to undertake that accommodation.

Employers do have options in meeting their accommodation obligations and the lawyers at CCP can assist in all manner of issues that may arise in the course of accommodating employees in the workplace.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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