Pre-employment health assessment only permissible in certain circumstances
Question: Can I require my employees to get a health assessment as a condition of employment?
Answer: Human rights legislation in all Canadian provinces protects persons with disabilities against discrimination in the workplace or in a hiring process.
Consistent with the requirements of human rights legislation, a pre-employment health assessment is only permissible if it is limited to assessing the candidate’s ability to perform the essential job duties and any restrictions that may limit this ability.
However, any broader assessment of the candidate’s health and medical conditions will not be permitted.
As well, privacy legislation in certain jurisdictions, such as Ontario and British Columbia, may also place restrictions on pre-employment medicals.
Therefore, the best practice is to:
•Advise the candidate about any medically related requirements or standards early in the application process.
•Only seek medical information (or a pre-employment medical) after a candidate has accepted a conditional offer of employment.
•Ensure the candidate understands what the information will be used for and obtain clear consent from the candidate.
•Ask only for information required to determine whether the candidate meets the bona fide occupational requirements (BFORs) of the position.
•If the candidate discloses medical information that would impact on the ability of the candidate to carry out key functions of the position applied for, then the employer should still consider whether accommodation is possible.
Once an employee has been hired, the ability to seek medical information is going to depend upon both the collective agreement or contract of employment and the reason the information is being sought.
Access to medical information is a hotly debated topic in arbitrations and the language in each collective agreement varies widely.
Therefore, careful consideration should be given to the language in your agreement and the context in which it has been interpreted by the parties.
Employers are only permitted to ask for medical information in certain limited circumstances, such as:
•To ensure an employee is fit to return to work after an injury or illness
•To support an absence from work, particularly where the circumstances of that absence are questionable
•To support a claim for accommodation
In short, any request for medical information must be reasonable.
In the absence of a reasonable necessity for such information, there is no requirement for an employee to provide medical information.
As one arbitrator noted in the case of University of Windsor v. Faculty Association of the University of Windsor:
“Employers are not free to compel employees to submit to examination by the employer’s doctor or an examination in combination with the employee’s own doctor without some reasonable grounds for doing so. In other words, it is not an inherent right of management but one that may be present if there are reasonable grounds to believe there are medical concerns related to job performance.”
In short, compelling a candidate for employment or an employee to undergo a health assessment is not an automatic right of an employer; however, such assessment can be required in reasonable circumstances. As in all cases where there is a balancing of privacy issues, arbitrators and decision makers will require a compelling reason to uphold an employer’s decision to require a health assessment.
For more information see:
• University of Windsor v. Faculty Association of the University of Windsor, 2005 CarswellOnt 4836 (O.A.B.)
Rebecca Saturley is a partner at Stewart McKelvey in Halifax. She can be reached at (902) 420-3333 or [email protected].
