Employers need the right information to accommodate sick employees but employees must also co-operate
Looking for a doctor in the house
Accommodation of employees with illnesses or disabilities can be difficult for employers to determine, particularly when trying to figure out the point of undue hardship. That’s why it’s important to get the right information from a medical professional who is familiar with the employee’s condition. However, there are boundaries as to what information employers can demand.
Determining accommodation can be more difficult if the employee doesn’t provide the information needed to assess the situation. Employees have an obligation to co-operate in the accommodation process and this includes providing the employer with appropriate medical information.
Employment lawyer Blair McCreadie offers some tips on what information employers should get, the best approach to get it and how to handle an unco-operative employee.
Managing an absent employee’s transition back to full-time employment can be a challenge for employers, especially where the employee has not provided clear and adequate medical information. But even where an employer requests a medical certificate, the response can sometimes be a one-line note that provides little information to help the employer assess its accommodation obligations.
Most employers understand there is a duty to accommodate an employee who is absent due to illness or disability to the point of undue hardship. But there is a corresponding obligation on the employee to provide reasonable proof to support her absence and co-operate with the employer’s efforts to get her back to work as quickly as possible. An employee must actively participate in the process and provide sufficient information to help the employer understand what accommodation is needed to get the employee back to work.
Getting the right information
So what information is an employer entitled to receive? Generally, an employer cannot request confirmation of an employee’s medical diagnosis. However, it can request sufficient medical information to justify the employee’s ongoing absence from work, assess the employee’s fitness to return to work based on any ongoing medical restrictions and confirm an expected timeline for a return to work.
Where appropriate, the employer’s first step should be to send an initial request for information from the employee’s treating physician. This initial request should include a questionnaire about the employee’s medical restrictions, a detailed job description or analysis of the physical demands of the employee’s position and an appropriate consent authorizing the treating physician to release this information to the employer.
Each questionnaire should be tailored to confirm the individual employee’s ongoing medical restrictions and their projected duration. The physician should also be asked to assess the impact of each restriction on the duties and responsibilities outlined in the employee’s job description and make specific recommendations for any required accommodation. Finally, the physician should also be asked to confirm a timeline for further assessment and give an opinion on the employee’s prognosis to return to work.
Documentation is important
It is important for employers to clearly document any requests for information made to the absent employee. If an employee fails to respond, or if the response provided is not sufficient, the employer should clarify that the information is relevant and necessary to assess its accommodation obligations and gently remind the employee of her obligation to co-operate in the return-to-work process. These documented requests will help to establish the employer made sufficient efforts to accommodate the absent employee if a dispute arises later.
Handling a refusal to provide information
If an absent employee fails to co-operate or refuses to provide sufficient information, it may be appropriate to request the employee to attend an independent medical examination (IME). It is important to note employers do not have an inherent right to demand an employee submit to an IME in the absence of a specific authority under a statute, employment contract or collective agreement. Therefore, an employer should exhaust other less intrusive means to gather information from an absent employee before requesting an IME.
Even in appropriate circumstances, an employer should have reasonable grounds before requesting an IME. This could include ambiguous or conflicting medical information, a demonstrated lack of co-operation by the employee to provide relevant information or a specific lack of expertise by the treating physician. A request for an IME should be in writing and confirm the reason for the request. Wherever possible, an employer should also provide a choice of acceptable physicians and give the employee a reasonable time frame to attend the IME. The scope of the examination should be limited to only what is medically relevant to determine the employee’s ongoing restrictions. Ideally, an employer should also have either a sick leave policy or a contractual or collective agreement provision confirming it may request an IME as part of its return-to-work process.
In addition, an employer can also request an employee provide reasonable medical clearance confirming she is fit to perform the essential duties of her position before returning to work. If the medical certificate provided is not sufficient and the employer has reasonable grounds to believe the employee cannot safely perform her job duties, it may request additional information before permitting a return to work. Again, the employer should specifically advise the employee what information it requires and specifically outline its health and safety-related reasons for making the request for additional information.
Finally, employers often ask how to address a situation where an employee simply refuses to co-operate or provide sufficient information. Because the employer’s right to request sufficient information must be balanced against the privacy interests of the employee, courts and arbitrators are often reluctant to uphold disciplinary action or a termination for just cause without evidence of clear, culpable misconduct on the part of the absent employee. This could include, for example, a situation where the employee provides false medical information in response to the employer’s request.
Instead, where an employer has reasonable grounds to request additional medical information, the employee should be placed on unpaid leave and should not return to work until a satisfactory medical certificate is provided. If the employee does not co-operate with her employer’s accommodation and return to work efforts, she may ultimately relieve the employer of its duty to accommodate and allow it to end the employment relationship through frustration of contract.
Employers must remember that fulfilling a duty to accommodate an absent or returning employee will take time. They should not rush to final judgment when managing one of these situations — each one should be assessed individually and meaningfully to determine what accommodation is appropriate. An employer should also fully document any requests for additional medical information and any responses received. Finally, it is important to work proactively and co-operatively with other workplace stakeholders — the treating physician, benefits carrier or trade union — to obtain the medical information needed by the employer to assess its accommodation and return to work obligations.
Blair McCreadie is a partner in the Employment Law Group at Fraser Milner Casgrain LLP in Toronto. He can be reached at (416) 863-4532 or [email protected]