Figuring out employee co-operation during accommodation process

What happens when a worker refuses to supply needed medical information?
By Brian Johnston
|Canadian HR Reporter|Last Updated: 10/16/2017

Question: If an employee requests specific accommodations but refuses to supply any information about her medical issue or restrictions, is the employer obligated to meet the requests?

Answer: No. If the employer’s request for information was reasonable and necessary to allow it to evaluate the need for and appropriate form of accommodation, and the employee refuses to supply that information, the employer does not have to meet the employee’s requests and will be relieved of its duty to accommodate her.

While the burden of finding an appropriate accommodation lies primarily with the employer, workplace accommodation is a two-way street. The law seeks to balance the employee’s right not to be discriminated against with the employer’s legitimate interest in a safe and productive workplace.

The Supreme Court of Canada has been clear that employees have a duty to assist in and facilitate the search for accommodation, as seen in the 1992 case Renaud v. Central Okanagan School District No. 23.

It is not only an employer’s right but its responsibility to seek sufficient information so it can verify and understand the need for accommodation and to identify specific accommodation needs. This may include medical information and documentation.

For their part, employees requesting accommodation have to provide reasonably sufficient information to facilitate the process. For example, if an employee makes a request not to work at particular times on the basis of a disability, the employer may be entitled to relevant medical information supporting the need for this specific accommodation, as seen in the 2013 Human Rights Tribunal of Ontario decision Rhijnsburger v. Wal-Mart Canada Corp.

And in the 2015 Bottiglia v. Ottawa Catholic School Board decision, the Ontario Human Rights Tribunal dismissed the complaint after finding the employee had failed to participate in the employer’s reasonable request for medical information in the form of an independent medical exam.

In a well-known Nova Scotia case, the 2006 Halliday v. Michelin North America (Canada) Ltd., a board of inquiry denied a complaint of discrimination on the basis of disability. Despite initiative taken by the employer, the employee provided only a “very confusing and vague picture” of the source of his disability.

The board determined that at the stage of examining the employer’s duty to accommodate, the employee had an obligation to identify the disability with some specificity and a treatment plan. The vague information provided did not enable the employer to fulfill its duty to accommodate.

In the accommodation process, the employer “cannot begin looking for (accommodation) unless it knows what it is looking for,” said the board.

Limits to requests

Of course, there are limits as to what information an employee must provide. When an employer unjustifiably requests medical information, the employee’s refusal to provide the information does not justify a failure to accommodate.

For example, in the 2007 Cole v. Bell Canada decision, the Canadian Human Rights Tribunal found that the employer’s demand for medical information supporting an employee’s request for modified working hours to allow her to breastfeed her child was unjustified. No supporting information was required in the circumstances given that the employee had just returned from maternity leave.

Ultimately, the information required to allow an employer to understand and explore appropriate accommodations will vary from case to case. Employers should only request information that is genuinely required in order to understand and assess the request for accommodation.

In the view of the Alberta arbitration board in the 2006 Capital Health Authority v. U.N.A., Local 33, some types of information that can reasonably be required include:

• the nature of the illness or disability

• whether it is permanent or temporary

• any restrictions and limitations

• how the medical conclusions were reached (for example, were any objective tests performed or was most of the information self-reported?)

• any treatment or medication that might impact the accommodation or the employee’s ability to perform her job.

Of course, each case will turn on its circumstances, including the particular form of accommodation requested.

Brian Johnston is a partner at Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmckelvey.com.

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