A two-way process
Question: If an employee requests specific accommodations but refuses to supply any information about her medical issue or restrictions, is the employer obligated to meet the requests?
Answer: No. If the employer’s request for information was reasonable and necessary to allow it to evaluate the need for and appropriate form of accommodation and the employee refuses to supply that information, the employer does not have to meet the requests and will be relieved of its duty to accommodate.
While the burden of finding an appropriate accommodation lies primarily with the employer, workplace accommodation is a two-way street. The law seeks to balance the employee’s right not to be discriminated against with the employer’s legitimate interest in a safe and productive workplace. The Supreme Court of Canada has been clear that employees have a duty to assist in and facilitate the search for accommodation (Renaud v. Central Okanagan School District No. 23).
It is not only an employer’s right, but its responsibility to seek sufficient information so it can verify and understand the need for accommodation and to identify specific accommodation needs. This may include medical information and documentation. For their part, employees requesting accommodation have to provide reasonably sufficient information to facilitate the process. For example, if an employee makes a request not to work at particular times on the basis of a disability, the employer may be entitled to relevant medical information supporting the need for this specific accommodation (Rhijnsburger v. Wal-Mart Canada Corp.).
In Bottiglia v. Ottawa Catholic School Board, the Ontario Human Rights Tribunal dismissed the complaint after finding that the employee had failed to participate in the employer’s reasonable request for medical information in the form of an independent medical exam.
In a well-known Nova Scotia case, Halliday v. Michelin North America (Canada) Ltd, a board of inquiry denied a complaint of discrimination on the basis of disability. Despite initiative taken by the employer, the employee provided only a “very confusing and vague picture” of the source of his disability. The board determined that at the stage of examining the employer’s duty to accommodate, the employee had an obligation to identify the disability with some specificity and a treatment plan. The vague information provided did not enable the employer to fulfill its duty to accommodate. As the board put it, in the accommodation process, the employer “cannot begin looking for (accommodation) unless it knows what it is looking for.”
Of course, there are limits as to what information an employee must provide to support an accommodation request. When an employer unjustifiably requests medical information, the employee’s refusal to provide the information does not justify a failure to accommodate. For example, in Cole v. Bell Canada, the Canadian Human Rights Tribunal found that the employer’s demand for medical information supporting an employee’s request for modified working hours to allow her to breastfeed her child was unjustified. No supporting information was required in the circumstances given that the employee had just returned from maternity leave.
Ultimately, the information required to allow an employer to understand and explore appropriate accommodations will vary from case to case. Employers should only request information that is genuinely required in order to understand and assess the request for accommodation. In the view of the Alberta arbitration board in Capital Health Authority v. U.N.A., Local 33, some types of information that can reasonably be required include:
• The nature of the illness or disability
• Whether it is permanent or temporary
• Any restrictions and limitations
• How the medical conclusions were reached (e.g. were any objective tests performed or was most of the information self-reported?)
• Any treatment or medication that might impact the accommodation or the employee’s ability to perform her job.
Of course, as highlighted above, each case will turn on its circumstances, including the particular form of accommodation requested.
For more information see:
• Renaud v. Central Okanagan School District No. 23, 1992 CarswellBC 257 (S.C.C.).
• Rhijnsburger v. Wal-Mart Canada Corp., 2013 HRTO 1109 (Ont. Human Rights Trib.).
• Bottiglia v. Ottawa Catholic School Board, 2015 CarswellOnt 20617 (Ont. Human Rights Trib.).
• Halliday v. Michelin North America (Canada) Ltd., 2006 CarswellNS 652 (N.S. Bd. of Inquiry).
• Cole v. Bell Canada, 2007 CarswellNat 2701 (Can. Human Rights Trib.).
• Capital Health Authority v. U.N.A., Local 33, CarswellAlta 1409 (Alta. Arb.).
