In this post, we'll talk about legal jurisprudence, relevant statutes regarding medical documentation in disability cases, the intricacy between the duty to accommodate and medical documentation, and some common situations where medical documents are required to be disclosed. Continue reading to learn more.
Topics Will be Covered in This Post:
1. The Role of Medical Documentation in Disability Cases
Employers typically require medical information and evidence from employees to accommodate an injury, illness, or disability or to determine whether an employee is fit to return to work following a medical absence, or to determine whether an employee is eligible for chronic mental stress WSIB benefit.
Medical Evidence is usually required in filing short-term disability (STD) and long-term disability (LTD) claims to insurance companies as well.
You might also want to click here to check out our disability discrimination ultimate guide for an in-depth discussion of disability law and disability discrimination.
The Ontario Human Rights Commission (OHRC) Policy on Ableism and Discrimination Based on Disability sets out information about the role of medical documentation in the accommodation process.
The Policy states that the type of information accommodation seekers may generally be expected to provide to support an accommodation includes:
Confirmation that the person has a disability;
The limitations or needs associated with the disability;
Whether the person can perform the essential duties or requirements of the job, with or without accommodation;
The type of accommodation that may be needed to allow the person to fulfill the essential duties or requirements of the job; and
Regular updates about when the person expects to come back to work, if she is on leave.
The Policy notes that where there is a reasonable basis to question the legitimacy of an employee’s request for accommodation or the adequacy of the information provided, the employer may request confirmation or additional information from a qualified healthcare professional.
However, an employer cannot ask for more confidential medical information than necessary in accommodating the employee’s needs. An employer generally does not have the right to require disclosure of an employee’s confidential medical information such as the cause of the disability, diagnosis, symptoms, or treatment, unless these clearly relate to the accommodation being sought.
2. Independent Medical Examinations (IME)
Employers or Insurance Companies typically request the employee consent to an Independent Medical Examination (IME) for reasons mentioned above.
In Bottiglia v. Ottawa Catholic School Board, 2017 ONSC 2517, the Ontario Divisional Court discussed the circumstances under which an employee must consent to an independent medical examination (IME).
In this case, as the employee prepared to return to work from a two-year medical leave, the employer asked him to undergo an IME by a doctor of its choosing as a precondition for his return to work to determine the appropriate accommodation. The employer took the position that the medical documents the treating physician provided were deficient.
The employee refused to undergo the IME, resigned and filed a complaint to the Ontario Human Rights Tribunal (HRTO). HRTO dismissed the complaint.
Referencing the OHRC policies in its decision, the Tribunal held at para. 106 - 109 that the employer’s request of an IME was justified, and noted that the employer “had a reasonable and bona fide reason to question the adequacy and reliability of the information the employee provided and the legitimacy of the employee’s proposed accommodation and to consequently seek an independent medical assessment.”
On judicial review, the Ontario Divisional Court held that the Tribunal’s decision was reasonable. The Court disagreed with the employee’s submission that an employer may only request an IME in the presence of contractual authority or when expressly authorized by statute.
The Divisional Court reasoned in para. 66, and para. 67 that “the duty imposed” on an employer to accommodate an employee’s disability to the point of undue hardship under section 17(2) of the Human Rights Code “brings with it the right in certain circumstances to request an IME”.
The Divisional Court agreed with the HRTO decision and held in para. 76 that “in certain circumstances, the procedural aspect of an employer’s duty to accommodate will permit, or even require, the employer to ask for a second medical opinion”, and it will be justified in requesting that an employee attend an IME. Those circumstances include “where the employer has a reasonable and bona fide reason to question the adequacy and reliability of the information provided by an employee’s medical expert”.
However, the Divisional Court stated clearly in para. 77 that “an employer is not entitled to request an IME in an effort to second-guess an employee’s medical expert”, and that an IME is justified ONLY IF “the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate”.
The Divisional Court also cautioned that in cases where an IME is justified, an employer is NOT ALLOWED to provide information to the examiner that could potentially bias the examination. Specifically, the Court stated, at para. 92:
Where an employer has provided information to an examiner which might reasonably be expected to impair that examiner's objectivity...an employee is justified in refusing to attend the IME. In such a case, the accommodation process will not have failed as a result of the employee's refusal to attend the IME. Instead, the process will have broken down as a result of the employer's actions in potentially impairing the examiner's objectivity.
3. Type and Scope of Medical Documentation
In this blog post we will discuss some of the most common situations where medical documents are required to be disclosed.
a. The Duty to Accommodate
The HRTO has stated in the famous case Misetich v. Value Village Stores Inc., 2016 HRTO 1229, that the accommodation process is a multi-party inquiry and the employee is obligated to cooperate in this process, providing sufficient information with respect to the disability or illness requiring accommodation and then working with the employer to identify reasonable solutions to accommodate the employee’s need appropriate in the circumstances.
Click here to learn more about family status discrimination by reading the blog post Family Status Discrimination - A Legal Analysis.
When considering the type of medical documentation an employer is entitled to, an employee’s right to privacy MUST always be balanced with an employer’s legitimate need for sufficient information to satisfy its accommodation and health and safety obligations.
Ontario case law demonstrates that, in order to establish the existence of a disability and assist in the accommodation process, employers are generally entitled to request the following otherwise confidential medical information:
The nature of the illness or disability;
Whether it is permanent or temporary (prognosis);
Restrictions and limitations that flow from the disability;
The basis for the medical conclusions (i.e. the nature of the disability and illness, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes); and
Details of how any treatment needs, medication, or medical interventions may affect participation in the workplace.
See e.g. Complex Services Inc v Ontario Public Service Employees Union, Local 278, 2012 CanLII 8645 (ON LA), at para. 95.
i. The Employer’s Duty
When an employee requests an accommodation due to a disability or an illness, it triggers the employer’s duty to accommodate under the Ontario Human Rights Code (the “Code”), to the point of undue hardship.
The Supreme Court of Canada has established the undue hardship test in Central Alberta Dairy Pool v Alberta (Human Rights Commission), [1990] 2 SCR 489.
The Supreme Court has stated that in determining whether the employer has accommodated the employee to the point of undue hardship, a list of factors is to be considered:
financial costs of accommodation
disruption of the collective agreement
problems of morale of other employees
interchangeability of work force and facilities
size of the employer's operation (which may also influence the other factors, such as whether the financial cost is undue or the difficulty in adapting the work force or facilities to accommodate individuals)
safety concerns
The duty to accommodate has both a procedural and a substantive component.
![Central Alberta Dairy Pool v Alberta (Human Rights Commission), [1990] 2 SCR 489](https://static.wixstatic.com/media/11062b_14b1ebf48b494daf9f1c5a0db9f82c13~mv2.jpg/v1/fill/w_980,h_735,al_c,q_85,usm_0.66_1.00_0.01,enc_auto/11062b_14b1ebf48b494daf9f1c5a0db9f82c13~mv2.jpg)
The procedural component requires employers to inquire into an employee’s accommodation needs and undertake an individualized investigation of potential accommodation measures to address those needs. The substantive component requires employer to make adjustments to the work environment to address those needs, including proof of undue hardship.
To be able to properly accommodate an employee, an employer requires medical information to understand the employee’s limitations, restrictions at work, and prognosis. This information is typically provided through medical documentation, either from the employee’s treating physician or through an independent medical examination (“IME”) performed by a medical practitioner chosen by the employer.
In Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, the Ontario Court of Appeal addressed employee medical documentation in the context of the procedural duty to accommodate.
In that case, the employee’s psychiatrist provided the employer with a medical update during the employee’s medical leave due to anxiety and depression, advising that the employee could not return to her previous role for medical reasons and recommending less stressful positions.
In February 2004, the employer requested that the employee attend an appointment with a psychiatrist to clarify restrictions or limitations and how best to accommodate them. The psychiatrist deemed the employee permanently disabled from her own occupation, but stated that the employee was still capable of gainful employment.
The employer did not identify another suitable position for the employee and terminated her employment in July 2004.
The Ontario Human Rights Tribunal (the “Tribunal”) found that the employee had fulfilled her obligation to cooperate fully in the accommodation process by staying in constant communication with the employer and providing her consent to the release of medical information.
The Tribunal also found that the employer had not fulfilled its duty to obtain the medical evidence necessary to accommodate the employee, even though the employee was willing to provide such information.
On judicial review, the Divisional Court found that the Tribunal’s decision was reasonable (2014 ONSC 2411), and the Ontario Court of Appeal upheld the Divisional Court’s decision (2016 ONCA 421).
The Court of Appeal reasoned that the Tribunal had properly found that the employer had a duty to obtain medical evidence necessary to accommodate the employee, but that it did not fulfill its duty.
The Court of Appeal held in para. 85 that, “the Tribunal had fairly observed that the medical evidence required clarification” concerning the employee’s restrictions and that “it would have been simple” for the employer “to clarify those restrictions with its own expert.” The employer presented “no evidence” that it “made any attempt to clarify” the employee’s “restrictions with its own expert or consider alternate positions during the two months following receipt of its expert’s report” confirming that the employee “was capable of gainful employment”.
As shown in Hamilton-Wentworth District School Board, employers cannot disregard the duty to obtain medical evidence once a request for accommodation is made.
Undue hardship is a high threshold to meet, and the larger the organization, the higher the expectation will be that it obtains the appropriate documentation to satisfy its accommodation and health and safety obligations
ii. The Employee’s Duty
An employee seeking accommodation is required to bring the fact of the disability or illness and need for accommodation to the employer’s attention, and to fully participate in the accommodation process.
Once an employee has communicated a request for accommodation for a disability or illness, the onus remains on the employee to establish the nature and extent of the disability and the accommodations required, which in most cases requires the disclosure of personal medical information.
An employee’s failure or refusal to substantiate the need for accommodation may stall or even end the accommodation process and may prove fatal in a future complaint to the Ontario Human Rights Tribunal (HRTO) or to the Courts.
Betts v. IBM Canada Limited, 2016 ONSC 2496, highlight the importance for employees of complying with their duties to provide medical information to support accommodation requests. Not taking this duty seriously may result in an inability to enforce their rights under the Human Rights Code.
In Betts v. IBM Canada Limited, 2016 ONSC 2496, the employee was away from work because of depressive symptoms.
Over a period of a number of months, the employer sent the employee five (5) letters which noted that if the employee did not return to work or submit medical documentation to the insurer by a certain date, the employer would consider the absence to be a voluntary resignation. Each successive letter provided a later date to either return to work or submit medical documentation. On several occasions, the employee provided the insurer with letters and emails from his psychologist recommending that he not return to work on account of his depression and anxiety.
However, the employee did not provide a medical practitioner’s opinion. On May 14, 2014, the employer sent the fifth letter asking the employee to file additional medical documentation for his short term disability claim with the insurer, failing which he would have to return to work by June 30, 2014.
On June 20, 2014, the employee informed the employer that, at his psychologist’s recommendations, he would not return to work. The employer treated this letter as a resignation.
The employee filed a wrongful dismissal claim. The employer moved for summary judgment. The motion judge granted the employer’s summary judgment motion and dismissed the employee’s wrongful dismissal claim. The employee appealed.
The Ontario Divisional Court dismissed the employee’s appeal. The court reasoned in para. 16 that the employee failed to submit any medical evidence to establish that he was medically unable to perform his job, notwithstanding the fact that the employer requested that information on numerous occasions over a period of 8.5 months.
So it seems that according to the OHRC's Policy on Ableism and Discrimination Based on Disability and Betts v. IBM Canada Limited mentioned above, in order to discharge an employee's duty to provide medical documentation, an employee is expected to provide otherwise confidential medical information, in the form of his or her treating physician's or any other form:
The nature of the illness or disability;
Whether it is permanent or temporary (prognosis);
Restrictions and limitations that flow from the disability;
The basis for the medical conclusions (i.e. the nature of the disability and illness, prognosis, restrictions), including the examinations or tests performed (but not necessarily the test results or clinical notes); and
Details of how any treatment needs, medication, or medical interventions may affect participation in the workplace.
On the other hand, as stated by the Divisional Court in Bottiglia v. Ottawa Catholic School Board, it's the employer's duty to request an independent medical examination to satisfy itself where the employer has a reasonable and bona fide reason to question the adequacy and reliability of the information provided by an employee’s medical expert”.
b. Chronic Mental Stress & Traumatic Mental Stress
Under Section 13 of the Workplace Safety and Insurance Act (WSIA), a worker is entitled to benefits for chronic mental stress arising out of and in the course of the worker’s employment.
The chronic mental stress policy contains three key criteria that an injured worker must meet before being compensated:
The injured worker needs to provide a DSM-5-TR diagnosis from a regulated health-care professional who is authorized to make such a diagnosis (this includes family physicians, nurse practitioners, psychologists and psychiatrists).
There must be proof of substantial work-related stressors. An event or accident that occurred during the course of employment to trigger the chronic mental stress must be established to prove there is a cause.
There’s a causation requirement. This means that the workplace incident MUST be the predominant cause of the chronic mental stress.
An employer has the right to request a worker undergo an independent medical examination (IME) by a health professional selected and paid for by the employer if it’s reasonable necessary to access whether the employee suffers a chronic mental stress based on a DSM-5-TR diagnosis.
The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, often called the DSM-5-TR, is the latest version of the American Psychiatric Association’s gold-standard text on the names, symptoms, and diagnostic features of every recognized mental illness—including addictions.
Please click here for details regarding the WSIB’s policy on Employer-Requested Health Examinations.
Similarly, the Workplace Safety and Insurance Board (WSIB) has the right to request a worker undergo an independent medical examination (IME) by a health professional selected and paid for by the WSIB.
Please click here for details regarding the WSIB’s examination policy on WSIB-Requested Health Examinations.
Click here to learn more about the WSIB's policy on Traumatic Mental Stress, which is very similar yet distinct from the Chronic Mental Stress policy.
A worker will generally be entitled to benefits for traumatic mental stress if an appropriately diagnosed mental stress injury is caused by one or more traumatic events arising out of and in the course of the worker’s employment, which includes workplace accident and workplace harassment.
Please read this blog post if you want to learn more about the intricacy between WSIB Chronic Stress Claim under Section 13 of the WISA and wrongful dismissal and constructive dismissal claims:
c. Short-Term Disability and Long-Term Disability Claims
When filing a claim for Short-Term Disability (STD) and Long-Term Disability (LTD), insurance companies typically require employee, employer, and treating physician statements:
- Employee statements are submitted by the claimant employee. Typically, an insurance provider will have specific paperwork that the claimant must fill out. Employee comments must be brief and precise in describing how the claimant's impairmentprevents them from performing essential tasks. Defining symptoms WILL NOT suffice unless there is a description of how the claimant's symptoms affect their ability to work, including a reference to specific activities required in that employee's job.
- Employer statements are provided by the employers. Such statements are also required to be clear and concise. Most essential, employers must submit a full description of the claimant's responsibilities, as well as information regarding the employer's ability to make reasonable accommodations to enable the disabled employee to continue working.
- Claims evaluators frequently look at statements from treating physicians. Treating doctors should clearly state the claimant's symptoms, diagnosis, suggested therapy, the claimant's involvement in treatment, and an evaluation of why the claimant is unable to work. Copies of evaluations and appointment records must also be included in the statement.
Please read this blog post if you want to learn more about the intricacy between Long Term Disability, Wrongful Dismissal, Disability Discrimination:
d. Fitness to Resume Work
Generally, when an employee returns to work after a period of disability or illness, an employer has an obligation to satisfy itself that the employee is fit to resume employment, and that the employee is not a source of danger to himself, to other employees, to company property, or to the general public.
The scope of medical information an employer is entitled to request to prove fitness to return to work is narrower than when an employee requires accommodation.
The employee has the initial onus of substantiating her ability to return to work, which may be discharged by producing a medical certificate. Once the employee returns to work, if an employer has reasonable grounds for suspicion that the employee is a source of danger to herself, to others, or to company property, or that she is unfit to perform her duties, the employer may ask for additional medical information.
However, the request must be related to the reasons for the absence and the employer is not entitled to a broad inquiry concerning the employee’s medical condition. If the employee refuses, in some circumstances the employer can discharge the employee for refusing a reasonable request and for being an occupational health and safety risk.
e. Domestic or sexual violence leave
Under section 49.7 of the Employment Standards Act (ESA), employees who have been employed by their employer for at least 13 consecutive weeks are entitled to domestic or sexual violence leave if the employee or the employee’s child has experienced or been threatened with domestic violence or sexual violence, and the leave is taken for any of the following purposes:
To seek medical attention for the employee or the child of the employee because of a physical or psychological injury or disability caused by the domestic or sexual violence
To access services from a victim services organization for the employee or the child of the employee
To have psychological or other professional counselling for the employee or the child of the employee
To move temporarily or permanently
To seek legal or law enforcement assistance, including making a police report or getting ready for or participating in a family court, civil or criminal trial related to or resulting from the domestic or sexual violence
The employee MUST NOT be the perpetrator of the domestic or sexual violence. An employee is not entitled to this leave if the employee committed the domestic or sexual violence.
“Child” means a child, step-child, child under legal guardianship or foster child who is under 18 years of age.
Domestic and sexual violence leave can be taken all at once, as single days or in groups of days. The leave provides:
5 days of paid leave; and
5 days of unpaid leave.
If needed, a longer-term of up to 15 unpaid weeks can be taken. This leave may be taken consecutively or separately.
Under Section 49.7 of the Employment Standards Act (ESA), an employer may require an employee who takes a leave under this section to provide evidence reasonable in the circumstances of the employee’s entitlement to the leave.
It’s unclear what type of evidence that would be considered reasonable, but the following would likely meet the threshold:
Medical Notes from medical practitioners, victim services organizations, or other community agencies helping the employee or the child;
Documentation from law enforcement agencies; or
Documentation showing that a lawyer was retained for a domestic or sexual violence related case.
For privacy considerations, the information provided by the employee will probably be required to be kept confidential by the employer.
The Ministry of Labour, Training and Skills Development has created a comprehensive guide regarding domestic violence leave of absence. Click here for more detail.
Click here to learn more about Legal Protections Available Against Sexual Harassment.
4. Conclusion
Employers typically require medical information and evidence from employees to accommodate an injury, illness, or disability or to determine whether an employee is fit to return to work following a medical absence, or to determine whether an employee is eligible for chronic mental stress WSIB benefit or STD and LTD claims.
The accommodation process is a multi-party inquiry and the employee is obligated to cooperate, providing sufficient information, and in some cases consent to an IME, and then working with the employer to identify reasonable solutions to accommodate the employee’s need appropriate in the circumstances.
There's no one-size-fit-all test on what is the required type and scope of medical documentation in any given situation.
When in doubt, you are highly recommended to contact an experienced employment lawyer for a risk free employment lawyer consultation.
When you have been terminated wrongfully or you have been constructively dismissed or you have been terminated due to disability, or that you experienced chronic or traumatic mental stress due to workplace harassment or workplace discrimination, you should consults with an employment lawyer or you risk waiving your legal rights under Common law, the Human Rights Code or your rights in suing for wrongful dismissal, constructive dismissal or workplace discrimination.
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