How much is too much information?
Question: I understand there are limits to what medical information an employer can request when examining options for accommodating a disability, but are there limits to what information can be requested from an employee requesting family status accommodation?
Answer: As with any request for reasonable accommodation of an employee’s protected characteristics, the nature of the accommodation sought will determine the information to which the employer will be entitled. The case law generally requires that an employee provide sufficient information to establish a need for accommodation and to allow the employer to craft and implement an appropriate solution. As with disability accommodation, privacy concerns may restrict the employer’s entitlement to information but, generally speaking, an employer will be entitled to information that is reasonably necessary to fulfill its obligations.
The most common requests for family status accommodation involve conflicts between childcare and employment obligations, although eldercare obligations have also been considered. The case law addressing an employer’s duty of reasonable accommodation of such obligations has not defined any precise limits on the information the employer may request in assessing the nature and extent of its duty in these contexts.
However, the most recent authoritative test for discrimination in relation to childcare obligations at the present time, from the Federal Court of Appeal decision in Johnstone v. Canada (Border Services Agency), requires an employee to establish: (i) a child is under her care and supervision; (ii) the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, and (iv) the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligation.
As the employer’s duty to accommodate arises only in the event that these elements are met on the facts, an employer would reasonably be entitled to sufficient information to allow it to conclude that its duty was triggered on the facts and how that duty might best be met.
There will obviously be cases where an employee claims accommodation on the basis that a family member’s disability necessitates her absence. If an awareness of the family member’s condition and prognosis could be shown to be a necessary and appropriate aspect of the employer’s decision, there is no reason to conclude that its request for that information could be refused by the employee with impunity. In the final analysis, the question of what information the employer may demand in any particular case will depend on the nature of the request for accommodation and the information reasonably required to both substantiate and fulfil the employee’s accommodation needs.
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Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright’s Calgary office. He can be reached at (403) 267-8225 or [email protected].
