THE EMPLOYERS' EDGE
When Can an Employer Ask For A Second Medical Opinion When Accommodating A Disability? Ontario’s Divisional Court Weighs In
By now we all know that an employer has a duty to accommodate an employee with a disability to the point of undue hardship. However, we also know that that the medical information provided by an employee’s medical professional does not always assist with the accommodation process and can be otherwise questionable. In these cases, employers may wish to seek a second medical opinion by requiring the employee to undergo an Independent Medical Examination (“IME”). But does an employer have to right to request an IME, and, if so, under what circumstances can they do so?
Ontario’s Divisional Court was recently asked to review an Ontario Human Rights Tribunal Decision relating to this very question and the results were mostly good for employers. While the Court did not hold that employers have a freestanding, unrestricted right to request an IME, the Court held that in certain circumstances an employer will be justified in requesting that an employee attend an IME as part of the employer's duty to accommodate. The Court found that this right stems from Section 17(2) of the Human Rights Code.
The Court warned that an employer is not entitled to request an IME in an effort to second-guess an employee's medical professional. Instead, the employer ought to have a reasonable basis to question the adequacy and reliability of the information provided by its employee's medical professional before requesting an IME. In other words, where the employer cannot reasonably expect to obtain the information it needs from the employee's medical professional as part of the employer's duty to accommodate.
In this case, the applicant had been off work for almost two years when he communicated in February 2012 that he was unable to return to work and that his recovery would take a prolonged period of time. In June 2012, the employer received a letter from the applicant's doctor stating that the applicant was unable to attend work and that a return to work might place the applicant at a serious risk of a relapse. Then in August 2012, the employer was told that the applicant was capable of returning to work sometime in the next two months, on a very limited basis, with no evening duties, that the work hardening process would take 6-12 months and that the applicant might not return to full time duties in this time period.
The employer was concerned with the significant and unexpected changes to the applicant’s stated ability to return to work found within the medical documentation from the same doctor within a short time frame. The employer also had concerns with the extremely restrictive nature of the applicant's proposed return to work plan, with the apparent lack of insight in the doctor’s proposed accommodation, with the lack of a clear prognosis, and with the fact that the applicant’s return to work coincided with the end of the applicant’s paid sick leave. The employer therefore requested an IME.
The Court appeared to agree with the Tribunal’s suggestion that the employer’s experience with returning employees to work and its knowledge of the duties associated with the employee’s position made it reasonable to question the doctor’s proposed return to work plan. The Court agreed that the prognosis provided was tentative and uncertain and that “It was not evident, based on the proposed accommodations, what knowledge Dr. Levigne had of the workplace and the essential duties of the employee’s position.” The Court also agreed it was reasonable for the employer to be concerned that the return to work coincided with the end of the employee’s paid leave.
Having found the employer’s concerns to be reasonable, the Court held that its request for an IME was therefore also reasonable.
The Court added that where an employer is justified in requesting an IME, the employer is entitled to provide the examining doctor with information relevant to the issue of accommodation and to request such information from the examiner. However, the Court cautioned that the employer must respect as much as possible the employee's right to privacy and that such information must be restricted to information required to determine the degree to which the employee requires accommodation.
The Court further cautioned that when an employer provides the examiner with information, the employer must be careful not to impair the objectivity of the examiner. Where an employer provides information to an examiner that could reasonably be expected to impair that examiner's objectivity, the employee could be justified in refusing to attend the IME. In these instances, the accommodation process will have broken down as a result of the employer's actions in potentially impairing the examiner's objectivity.
Employers should take from this decision that they have a Code-based right to request an IME if there are reasonable concerns about the adequacy, reliability or validity of the medical information provided by an employee’s medical professional. However, when corresponding with the examining medical professional, employers must be careful to only request information that is directly relevant to the accommodation process and to not provide any information to the examiner that could impair the examiner’s medical professional’s objectivity.
The lawyers at CCPartners are experienced in all aspects of human rights law including an employer’s duty to accommodate. Click here for a list of lawyers at CCPartners who can help.