A second opinion on IMEs

Question: If an employee on medical leave undergoes an independent medical examination and is cleared for work, can the employer seek a second opinion?

Answer: In some circumstances it will be appropriate for an employer to require medical documentation before allowing an employee that has been on a medical leave of absence to return to the workplace. Obviously, this needs to be a fact-based assessment and it would be unreasonable to require medical documentation before allowing someone to return to work from a brief absence where there is no legitimate reason to be concerned about their return.

Usually, the question that we receive is whether an employer can require an independent medical examination (IME) after the employee provides documentation from their own physician. However, this reader’s question is premised on the fact that the employee has already undergone an IME. It would therefore be extremely unlikely that there would be a legitimate reason to require another opinion.

Courts and arbitrators are generally reluctant to allow employers to insist upon an IME. Unless a contract, collective agreement or applicable legislation requires it, IMEs should only be required where the information provided is inadequate, unreliable, or suspicious and the employer has first attempted to obtain more suitable information from the employee’s doctors. In other words, an IME should be a last resort and not a default; the first step is to go back to the doctors that provided the initial information.

It should also be noted that if the employer wants to rely on an allegation that the information provided by the employee is suspicious, there must be legitimate reasons for that suspicion and not just a baseless belief. IMEs are not to be used to second-guess the employee’s doctor.

Stuart Rudner is the founder of Rudner Law, an employment law firm in Toronto. He can be reached at [email protected] or (416) 864-8500.