An employer’s right to seek medical information

When an employee goes off on sickness or disability leave, to what extent can the employer request medical information to validate the absence? Some people feel an employer has no right to ask for any medical information.

Colin Gibson
Question: When an employee goes off on sickness or disability leave, to what extent can the employer request medical information to validate the absence? Some people feel an employer has no right to ask for any medical information.

Answer: Generally speaking, employers are entitled to request certain types of medical information from employees where such information is needed for the employer to manage its business.

Of course, an employer’s right to request medical information in a particular situation will be subject to the provisions of the applicable legislation, as well as any collective agreement, employment contract or policy. In determining the scope of an employer’s right to request medical information, arbitrators, courts and adjudicators will seek to strike a reasonable balance between the employer’s business needs and the privacy interests of the employee.

Employers often request medical information where an employee is absent from work due to illness or injury. In this regard, employers have a vested interest in ensuring employees are absent only for legitimate reasons and that sick leave benefits are not abused.

Employers are also entitled to obtain medical information to establish that an employee is fit to return to work after an absence due to illness or injury if there are reasonable grounds to question the employee’s fitness or ability to work safely.

Where an employer is asked to take steps to accommodate a disabled employee, the employee will have an obligation to provide the employer with relevant medical information to enable the employer to assess the request and determine whether it can be accommodated short of undue hardship.

What sort of medical information can an employer ask for? Generally speaking, employees must provide sufficient information to demonstrate that their absence is bona fide or their recovery is sufficient to permit them to return to work. The authorities generally agree that an employer can properly require an employee to provide a medical certificate describing:

•the general nature of the illness or disability;

•the prognosis;

•the expected date when the employee will be fit to return to work;

•any limitations or restrictions on the employee upon return, and,

•in the case of a return to work, evidence that the employee is fit to return.

Where the employee is seeking an extended sick leave, the employer may be entitled to seek the following additional information:

•confirmation that the attending physician’s opinion is based on a current examination;

•information as to whether a treatment plan has been prescribed for the employee and whether that plan is being followed; and

•information concerning medical follow ups.

In most cases an employer will not be permitted to request information regarding the employee’s specific diagnosis. The arbitral authorities make it clear that an employer must provide compelling evidence to demonstrate the reasonableness of such a request.

Where medical information is sought, employers must be mindful of their obligations under federal or provincial privacy statutes. These impose limits on the collection, use and disclosure of personal information in the public and private sectors. In addition, workers’ compensation, employment insurance, pension and human rights legislation may contain specific obligations with respect to the confidentiality and privacy of personal information.

Under these statutory regimes, medical information is one of the most sensitive types of personal information. The principles underlying privacy legislation are based on the same themes evident in the arbitral jurisprudence on employee medical information, such as consent, reasonableness of purpose, limited disclosure and balancing of interests.

British Columbia’s Personal Information Protection Act (PIPA) allows private-sector employers to collect and use employee personal information (including medical information) without an employee’s consent if that information is necessary for “the purposes of establishing, managing or terminating an employment relationship between the organization and the individual.” Employers are required to give employees notice of the use they intend to make of an employee’s personal information. Where information is highly sensitive, employers should be prepared to justify its collection and use in relation to the requirement that it is necessary for the administration of the employment relationship.

PIPA precludes unnecessary disclosure of personal information collected by an employer. Some disclosure of medical information may be necessary to administer the employment relationship or may be permitted or authorized by law. (For example, disclosure to insurers, benefits carriers, WCB and legal counsel.) Employers should limit the number of personnel who become privy to such information to an absolute minimum to ensure confidentiality.

Generally, only those persons who are involved in determining whether sick-leave benefits should be granted or those who are in charge of deciding whether an employee may return to work should be entitled to review the information.

The employer must also ensure all medical information is secured and protected from unauthorized access or disclosure.

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.

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