Alberta Human Rights Commission
The website of Alberta Human Rights Commission provides some very helpful practical advice regarding permissible medical information for accommodation purposes. It states:
“The employer may require information such as the following to determine what accommodations are necessary:
- whether the illness or injury is permanent or temporary;
- what restrictions and limitations an employee has; and
- whether a treatment or medication the employee is taking will affect the employee’s ability to perform job duties.
The employer does not have the right to ask for all of the above information in every situation. The employer may only ask for the information that is necessary to make decisions about accommodating the employee, providing disability leave, or assessing if the employee can return to work. Only in exceptional circumstances will the employer have the basis to request the diagnosis.
Employers must try less intrusive methods of obtaining clear medical information before requiring this information through other means. For instance, if an employee submits a short note from their doctor that the employee can return to work with modified duties, the employer may need more information on what restrictions or limitations the employee has. The employer can get permission from the employee to contact the employee’s doctor for more information before asking for specific tests or an independent medical examination (IME). This is best done in written form such as a signed release from the employee and a written request from the employer to the doctor.
How may an employer respond to medical information?
The employer’s response to medical information depends upon their evaluation of the information. The employer may:
- find there is sufficient information for the employee to be absent;
- find there is sufficient information for the employee to return to their regular duties;
- use the existing information to evaluate what accommodations are needed; or
- determine that further medical information is necessary.
Determining whether sufficient medical information has been provided
To determine whether the medical information supplied is sufficient, the employer must look at the individual facts of each case. An employer will likely need more information when an employee is off for a longer period of time or requires accommodation.
An employer may also require updated information if the employee is away on medical leave for an extended period of time. However, requests for information should not be so frequent as to harass the employee while on sick leave. With the employee’s consent, the employer may ask the doctor or specialist when it will be reasonable to review the employee’s status.
Before asking for more medical information, the employer should first determine whether the information that the employee has already provided can be used to assess the employee’s situation. If not, and the employer decides to ask for more medical information, the employer should:
- inform the employee in writing that the employee needs to supply further medical information, and the reason that this information is necessary;
- specifically identify the information that is being requested;
- remind the employee that all information will be kept in the strictest confidence; and
- continue to be open to any concerns an employee has about providing further medical information, and try to resolve these concerns up front.
Employers requesting medical information normally pay for medical assessments if they are not covered by a medical or benefit plan. If a dispute arises over payment, it must be determined if the employer would be providing accommodation up to the point of undue hardship by paying for the assessment. If the employer would experience undue hardship, then they would not be required to pay. See the Alberta Human Rights Commission’s interpretive bulletin Duty to accommodate for more information about undue hardship.
If the employer is still unsatisfied with the medical information, they may ask for further information. However, the employer should use the least intrusive method possible to get only the information that is needed to assess the employee’s situation.
Questionable absences and refusal to supply medical information
If the employee’s absence is questionable, the employer may decide to gather more information from the employee’s health care professional, such as a doctor, specialist, mental health professional or physical or occupational health therapist. If the employee refuses to supply the requested medical information, the employer will need to review what it has requested and whether more information is actually necessary. The employee and employer may want to sit down to discuss possible solutions to resolve the dispute. An employer who actively explores potential solutions avoids a bigger problem and improves workplace relationships.
When an employee refuses to supply further medical information, it does not automatically mean that the medical absence is not supported by a doctor. It may be that the employee has another disability‑related issue, such as a mental illness. An employee may also feel it is a violation of their privacy rights. It is in the employer’s best interests to invite the employee to explain their refusal to provide the information and to explain to the employee the consequences of not providing the information.
Employees who have a mental illness or substance abuse issue may not willingly supply necessary information. Unlike an employee with a physical disability, an employee with a mental illness may not consciously be aware of the original onset of the illness or a relapse. An employee with an addiction issue may not have come to terms with their addiction and so may do everything within their power to hide and deny the illness. In these circumstances, it is important for the employer to take extra measures by:
- meeting with the employee, if they are still working;
- respectfully requesting the information; and
- explaining why the information is important.
If an employer suspects a mental health issue or addiction problem, it would be discriminatory to ignore the medical issue and simply take disciplinary measures.
When the employer has exhausted all avenues of seeking the needed information and concluded that this information is reasonably necessary, the employer may try another approach. Terminating or disciplining an employee for providing insufficient medical information could result in a claim of discrimination. On the other hand, if the employer has not received information in support of a medical claim, then the employer may decide to ask the employee to stay home from work until specific medical information is provided.
It can be helpful to provide the employee with a detailed written request so they can share it with their doctor. If the employee refuses to provide any information to the employer, then the employer is relieved of their duty to accommodate. Both the actions of the employee and the employer will be considered when assessing a claim of discrimination.
Medical information from the employee’s own doctor versus a specialist
The employer usually gets information from the employee’s own doctor as to whether the employee is fit to work. In complex medical situations, where the employer requires more detailed information, the employee could suggest:
- getting further information from their family doctor;
- asking their family doctor to refer the employee to a specialist of his or her choice (the decision to refer is at the discretion of the family doctor);
- getting a consultation between an employee’s doctor and a doctor chosen by the employer; or
- choosing a specialist that the employee and employer agree upon to conduct an independent medical examination (IME) when there is a difference of opinion between specialists, and an IME is required.”
See Alberta Human Rights Commission website for further information.