Mar 29

Medical Documentation for Accommodation – What can my employer ask for?, Toronto Employment Lawyer

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The Ontario Human Rights Commission has released a policy in relation to the limits placed on employers when requesting medical documentation to substantiate an employee’s request for accommodation at work in relation to a disability.

The Commission has stated that employers should not ask for a broad sweeping medical information relating to the employee, for example diagnostic information.  The Commission has limited the collection of information to the following:

•Proof that the person has a disability;

•The limitations of needs associated with the disability claimed;

•Whether the person can perform the essential duties of the job, with or without accommodation;

•Types of accommodation that may be required to allow the person to perform the essential duties of the job; and

•Regular updates about when the person expects to return to work, if they are on leave.

If your employer is requesting for additional information, the Commission has stated that it must be “the least intrusive of the person’s privacy while still giving the organization enough information to make an informed decision about the accommodation.”  The bottom line, the Commission has stated that your employer does not have a right to know your confidential medical information unless it is in relation to the accommodations you are requesting to perform the essential duties of your job.  

The purpose is to ensure that appropriate accommodations can be made while respecting the individual’s privacy and dignity.  

Employer’s should keep in mind that the duty to accommodate an individual is to the point of “undue hardship”.  The Ontario Human Rights Code reviews three considerations to determine if the accommodation will provide the employer hardship:

1.Cost;

2.Outside Sources of Funding (if any); and

3.Health and Safety Requirements.

Employer’s should be flexible in their accommodation process and ensure to request only information that is required to make appropriate decisions in relation to your employee’s requests.

The case of Hydro-Quebec v. Syndicat des employe-e-s de techniques professionnelles et de bureau d’Hydro-Quebec, section locale 2000 (SCFP-FTQ), [2008] 2 SCR 561, 2008 SCC 43 (CanLII), considers accommodation to the point of undue hardship and states, “[t]he test is not whether it was impossible for the employer to accommodate the employee’s characteristics.  The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable to employee to do his or her work.”  The Tribunal also notes that the changes need not be permanent.

If you are concerned that an employee’s accommodation requests are causing your employment undue hardship, or if you believe your employer is failing to accommodate your disability and requesting too many medical documents, contact Monkhouse Law today for a free 30 minute consultation to discuss your options.

 

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