'The employer really didn't apply the level of flexibility needed'
“From an employer's perspective, you are entitled to ask for reasonable additional medical information and you don't have to simply accept whatever it is the employee is willing to give you,” says Danny Bernstein, a partner at Roper Greyell in Vancouver.
“But it has to be reasonable, and you have to justify that the information you're seeking is connected to the job and is going to help you in your assessment.”
An employer discovered the risk of overstepping its entitlement to medical information when it was ordered to pay more than a quarter-of-a-million dollars to a former employee.
Graduated return to work
TFI International operates a transportation and logistics business across North America. The worker was hired as an environmental advisor at its Saint-Laurent, Que., office on Sept. 18, 2017.
On May 25, 2018, the worker provided a doctor’s note stating that she needed a one-month medical leave due to anxiety. The worker provided additional medical notes over the next month.
The worker also applied for short-term disability (STD) benefits and signed a consent form for the third-party insurer to access her medical records. The benefits ended on Nov. 23.
On March 29, 2019, the worker provided another doctor’s note clearing her for a graduated return to work starting May 6, with her reaching a full-time schedule four weeks later.
TFI refused the proposal and said that the worker was expected to return full-time on June 25. TFI said that it needed more information to assess the proposed return to work.
TFI obtained the worker’s file from the insurer and determined that it needed a second opinion. It required her to attend an independent medical examination (IME) to evaluate her condition for a gradual return to work.
The worker asked for clarification and TFI said that the length of her absence justified the IME request. If she didn’t attend the IME, TFI would not approve her return and would consider “administrative and disciplinary sanctions.”
Ordering an IME at this stage should not be part of the normal accommodation process, says Bernstein.
“[An IME] is a deviation from the normal scenario, which is that the employee gets to choose their physician and the employee provides information directly from their physician,” he says. “An employer will really need some exceptional circumstances to warrant the employee attending a physician not of their choosing – the most common scenario is where there's inconsistent medical information.”
An employer’s request for more medical information before returning an employee to work was reasonable, the BC Human Rights Tribunal ruled.
IME physician needed more
The worker attended the IME on May 23. The IME physician reported that he couldn’t confirm whether the worker had ongoing functional limitations without a review of her complete psychiatric file, so he asked the worker to provide him access but the worker refused.
TFI believed that, based on her doctor’s clinical notes in the insurer’s file, the worker had hidden critical information about her capacity to perform her duties at the time of hire, so it gave her until July 19 to provide access to her complete psychiatric records or else it would terminate her employment.
The worker continued to refuse and TFI terminated her employment for being unable to perform the duties of her position and refusing to allow access to medical information that would allow the company to better evaluate her clinical state.
The worker filed an unjust dismissal complaint.
TFI maintained that the worker had falsely represented her capacity to meet the requirements of the position at the time of hire and she was unwilling to co-operate in the accommodation process.
Right to request information
Bernstein notes that TFI was entitled to question the medical information and the graduated return to work.
“The four-week graduated to return to work seems very quick after having been off work for such a long time, so the employer was within its rights to satisfy itself that the worker was safe to return to work,” he says. “It all went wrong because it should have written back to the employee to say, ‘Here is the additional information we need, go to your own physician and gather this information’ – which is what most employers will do as that first step.”
The Canadian Industrial Relations Board noted that an employee’s medical information is confidential personal information, but employers are entitled to sufficient information confirming that an employee is able to return to work.
In addition, employers must explore less intrusive options for medical information before requiring an IME, and they have the onus of proving that one is necessary, the board said.
The board found that TFI did not have authorization to obtain the worker’s file from the insurer, as her STD benefits had ended and her consent form was no longer valid. In addition, the consent form only applied to the insurer, said the board.
The board also found that worker’s 10-month absence was not long enough to justify TFI obtaining her file and her previous medical leave was irrelevant as it was unrelated.
Delaying an employee’s return to work with a request for more information was necessary to determine accommodation, the BC Human Rights Tribunal found.
Worker’s doctor reliable
The board also found that there was nothing in the notes from the worker’s doctor that suggested that he would be unable to provide additional medical information for reasonable inquiries – being an advocate for his patient did not exclude him from being a reliable source.
The board determined that TFI breached the worker’s privacy rights by accessing her file from the insurer and providing it to the IME doctor. It was also beyond the scope of what was reasonably necessary to assess her gradual return to work. Since this was a reason for termination, TFI did not have just cause, the board said.
Similarly, the board found that, because TFI didn’t request additional medical information from the worker’s doctor, it didn’t explore all avenues before requesting an IME.
A BC company was ordered to pay an employee $5,000 for breaching the employee’s privacy with an intrusive IME.
Employer was aggressive, inflexible
The problem started with TFI being too aggressive and singular in its approach to the accommodation process, says Bernstein.
“[TFI] took the position that it didn't trust the medical information coming from the employee’s physician, and then just insisted that she attend the IME and accessed the employee's medical files through the disability insurer,” he says. “Overall, the employer didn't apply the level of flexibility needed in the accommodation process and engage with the employee – it took a far more adversarial position and just really dug in.”
While an IME should only be considered after other options are exhausted, Bernstein notes that there is a range of options if that’s the way an employer wants to go.
“In this case, the employer wanted [the worker] to go to another psychiatrist of their choosing, but you can also agree with the employee on someone neutral,” says Bernstein. “You can also look at different types of assessments – it doesn't have to be an IME. We quite often have clients go for functional abilities assessments or some sort of physical examination evaluating them performing tasks.”
As for the other ground for termination – false representation at the time of hire – the board determined that TFI did not establish it existed or that it would invalidate the employment contract. TFI’s argument was based on the clinical notes in the insurer’s file that TFI was not justified in accessing, said the board, adding that TFI also used the notes for an improper purpose since it wasn’t in relation to a return to work.
An employer did not have to accommodate a worker until the worker provided sufficient medical information, the Alberta Human Rights Tribunal ruled.
Duty to accommodate
Ultimately, the board found that the worker had or was perceived to have a disability, which engaged TFI’s duty to accommodate. TFI did not explore accommodation options and her termination was an adverse impact related to her disability, which constituted discrimination, said the board.
TFI was ordered to pay the worker compensation for three years’ salary and benefits – from the termination date to the date of the hearing – and $50,000 in punitive damages for “blameworthy conduct that caused significant harm to the [worker] in breaching her privacy, sharing her confidential medical records and denying her reasonable accommodation of a gradual return to work contrary to its obligations under the [Canadian Human Rights Act].”
After subtracting what the worker earned in other employment since her dismissal, the total award was more than $250,000.
Accommodation is a two-way street and employees have an obligation to participate by providing reasonable medical information when requested, but employers should be flexible in their approach, says Bernstein.
“IMEs or having the employee see a physician that is not of their choosing is an exceptional outcome, and it's only in limited circumstances that employers can insist on that.”
See Wintemute and TFI International Inc., Re, 2022 CIRB 1049.