Changes don't appear to affect employer's right to medical information for accommodation: lawyer
When employees get sick, do they have to prove it?
There’s been some controversy over whether doctor’s notes make sense for employees who are sick. And when it comes to longer-term illnesses or injuries, what type of medical information employers should have has been up for dispute as well.
Recently, the Ontario government announced that it was going to end the argument over doctor’s notes for short-term illnesses by banning employers from requiring such notes if employees use part or all of their three days of statutory annual sick leave. This will involve amendments to Ontario’s Employment Standards Act (ESA), which currently allows employers to ask for doctor’s notes.
“Employers don’t have to, but the [ESA] currently says an employer can require an employee to provide a medical note from a health practitioner – be they a doctor, nurse practitioner, or psychologist - when an employee wants to take a leave because of personal injury, illness, or medical emergency, if it’s reasonable in the circumstances,” says Paulette Haynes, principal of Haynes Law Firm in Toronto.
“The employer can ask for things like the expected duration of the employee's absence, the date the employee was seen by this health-care professional, and whether that employee was in fact examined by the very health-care professional who's going to be issuing the note – but the employer can’t ask about the employee’s diagnosis or treatment.”
Duty to accommodate
Employers may be prohibited from asking for a doctor’s note with respect to a short-term leave of absence under the changes, but the amendments don’t seem to prohibit employers from asking for doctor’s notes for leaves of absence that are longer than three calendar days, says Haynes.
“It doesn’t appear that [the changes] would interfere with employers’ inquiries for medical information in a situation where the employer would have to satisfy their duty to accommodate under the Human Rights Code,” she says.
Under the Ontario Human Rights Code, when an employee is disabled and has notified their employer as such, the employer has a duty to accommodate to the point of undue hardship. Haynes notes that the province’s Human Rights Tribunal has established two facets of the duty to accommodate – the procedural and the substantive – with the procedural requiring medical information from the employee.
“The procedural element requires the employer to engage in a kind of exploratory exercise to understand the nature of the disability or the illness, and that can be done without getting into the diagnosis,” says Haynes. “Some exploration of the ways in which the employee’s condition or disability impacts the employee, particularly in connection to doing the essential duties of the job, are the kinds of queries that the employer could ask and are part of the analysis and exploratory work that the employer would engage in on the procedural part of accommodation.”
While employers can’t ask for a specific diagnosis of an employee’s illness or injury, sometimes they may feel that they need more medical information to properly assess accommodation needs or when an employee will be expected back from a medical leave. This can come from direct contact with an employee’s health care provider with the employee’s consent, but the employer must be careful with the scope of its queries, says Haynes.
Scope of medical information
“[The employer] needs salient information so that they can look at their work environment and then determine if they can accommodate,” she says. “If they get an initial letter from a health care practitioner and they have further questions, they can generally ask specific questions about restrictions and modifications, but, again, they can't get into the diagnosis or the treatment.
“They can certainly ask about other things that will help them to figure out the best way to accommodate this person in terms of position or logistical stuff for the physical workspace, but those questions have to be thoughtful questions,” adds Haynes. “The employer’s thoughts should be on ‘How can we best accommodate this employee?’, not go to the point where they're getting into the medical condition of the employee.”
From an employer's perspective, there's an organization to run and they have to figure out if the employee is going to be away for a while – there could be management issues and staffing issues that are connected with an employee being away for a period of time, according to Haynes.
“The employer should be asking questions that help them understand the nature of the disability for the purposes of determining whether and how they can best accommodate this person, their medical restrictions, and the need for any assistive devices, ergonomic furniture, or support staff.”
Ongoing accommodation
The medical information necessary for accommodation can also change over time, so the employer may be entitled to ask for more or updated medical information, according to Haynes.
“The employer has an ongoing duty of accommodation, so that then could mean going back to medical notes or information, and it would behoove the employer to ask once again pertinent questions to determine how to best accommodate this person, and that may include an inquiry to further understand how to continue to accommodate this employee going forward,” she says.
While Ontario’s proposed changes may confirm the status of doctor’s notes when employees take sick days, things could still be a little fuzzy when a short absence morphs into a longer one that may require medical documentation, says Haynes.
“It’s going to be very interesting to see how Ontario’s proposed legislation is laid out and whether it's going to touch upon some of the scenarios involving ongoing accommodation,” she says. “Right now, it's going to cover short-term leaves of absences, but is it going to spill over into things like accommodation obligations of the employer if the absence gets longer?”
