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Accommodating accommodation

An employee can't expect accommodation if she withholds information, nor can she dictate the accommodation required

By Stuart Rudner

Employers continue to be frustrated by employees who request “accommodation,” either in the form of modified duties or time off work, but fail or blatantly refuse to disclose any information in support of their request.

In many cases, employees cite privacy laws as the basis for their position they do not have to disclose anything about their medical condition.

As I often advise employers, while they are not entitled to know the employee’s diagnosis or other extraneous medical information, they are entitled to properly understand the limitations upon the individual’s ability to carry out their job-related duties. They cannot be expected to assess accommodation options without understanding what it is that must be accommodated. 

A recent Ontario labour arbitration decision contained some apt comments regarding this type of situation. In Complex Services Inc. v. Ontario Public Service Employees’ Union, Local 278, the decision included the following:

[86]  In the purely technical sense of the term, an employee has an “absolute” right to keep her confidential medical information private. But if she exercises that right in a way that thwarts the employer’s exercise of its legitimate rights or obligations, or makes it impossible for the employer to provide appropriate necessary accommodation, there will likely to be consequences, because an employee has no right to sick leave benefits or accommodation unless she provides sufficient reliable evidence to establish that she is entitled to benefits, or that she has a disability that actually requires accommodation and the accommodation required. Although an employer cannot discipline an employee for refusing to disclose confidential medical information, the employee may be denied sick benefits or it may be appropriate for the employer to refuse to allow the employee to continue or return to work until necessary such information is provided [sic].

[88]  As the Human Rights Commission’s policy indicates, the employee has an obligation to ask for accommodation and to provide sufficient information, including necessary otherwise private confidential medical information, to establish the accommodation required, and to participate in and to facilitate both the search for and implementation of accommodation – whether or not the accommodation available is “perfect” from the grievor’s subjective perspective. The employer has a legitimate need for sufficient information to permit it to satisfy its accommodation obligations.  An employee can neither expect accommodation if she withholds the information necessary to establish that she requires it, nor dictate the accommodation required.

The decision goes on to reference other cases and issues, but these core principles are, to my mind, worth repeating. An employee cannot have it both ways. They cannot expect accommodation but refuse to provide the necessary medical information.

As I have stated in the past, employers should never be abusive or harassive, but they should insist upon provision of appropriate medical documentation whenever an employee seeks accommodation, including time off work.

Stuart Rudner is a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at 416.595.8672 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @CanadianHRLaw.
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3 Comments
  • Religious accommodation?
    Wednesday, September 19, 2012 2:57:00 PM by Stuart Rudner
    A good question and perhaps the subject of a future blog post. The issue is obviously quite different, and employees don't usually have to prove how "religious" they are, but there must be some legitimacy to the request before the duty to accommodate is triggered. And, of course, employees are not automatically entitled to the requested form of accommodation; some other form may be appropriate.