Is job applicant required to disclose a medical or emotional condition?

For example, If an applicant has been treated for depression and if this has been an issue in past employment, does he have to tell the employer about it?

Question: Is an applicant obligated to disclose a medical or emotional condition that will affect their ability to do their job? For example, If an applicant has been treated for depression and if this has been an issue in past employment.

Answer: Generally speaking, there is no obligation on an applicant for a position to voluntarily disclose a medical condition that qualifies as a mental or physical disability under human rights legislation. This would include prior treatment for depression. As an employer is normally prohibited from making hiring decisions based on medical disabilities, a prospective employer would not be considered to have a right to such information.

However, if there is a legitimate basis for requiring a certain state of health as a job qualification, it may be appropriate to make that qualification clear in a job posting or advertisement. In such circumstances, a prospective employee who does not possess the necessary qualification and does not disclose that fact might be justifiably released as unqualified if hired.

Alternatively, an employer who has made a job offer to a prospective employee may ask him to submit to a pre-employment medical. Again, however, the employer must be able to establish that the possession of certain mental or physical qualities is essential to the performance of the job (with reasonable accommodation, if necessary). If that can be established, the employer will be entitled to satisfy itself that the prospective employee has the requisite qualities. Even in such a case, it is by no means certain the employer would be entitled to a diagnosis, as opposed to an answer, as to the prospective employee’s fitness (or lack of fitness) for the job from an occupational health professional.

That said, it is likely than an employer would be hard-pressed to establish that the absence of prior treatment for depression would qualify as a bona fide occupational qualification.

Tim Mitchell is a partner with Laird Armstrong in Calgary who practices employment and labour law. He can be reached at t.mitchell@lairdarmstrong.com or (403) 233-0050.

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