November 25, 2022
IN CANADA, THE law is clear: employers may request medical information from their employees in certain situations. However, when an employer can make requests and what they can request continues to be a thorny matter of conflict. Often, even when the employer is fully aware of the law and its prohibitions, it tries to obtain as much medical information as possible.
The basic principle is that the “doctor-patient relationship is one of the most private, and medical information should receive no broader distribution than is reasonably necessary.” This principle was also articulated in Re Telus Communications Co. and Telecommunications Workers Union (2010), 192 LAC (4th) 240:
The general principle is that an employer is required to use the least intrusive measure, and is only entitled to medical information that is reasonably necessary at the specific stage of the medical inquiry.
This principle, the constitutional foundation of which arises from the Charter of Rights and Freedoms, is operationalized by requiring the employer to use an “incremental approach” when requesting information.
In the context of return to work, the worker bears the onus of proving they are fit. Sometimes just showing up is enough. However, as the arbitrator in Westmin Resources Ltd. and Canadian Autoworkers made clear, “the employer is entitled to require further evidence of the employee’s renewed medical fitness and to hold the employee out of service without liability for wages pending the receipt of such further evidence” if the evidence provided does not reasonably resolve the issue.
When a duty to accommodate arises, the employer needs to know the worker’s restrictions and limitations. So, the employee must provide the relevant information to enable the employer to devise an appropriate accommodation. If, however, the employer demands excessive information, the worker should not comply. Note that an employee cannot be disciplined for refusing to provide medical information, but they would have to accept the possibility of informal retribution, such as not qualifying for sick leave and benefits, or potentially losing their job.
Employers are not permitted to contact a worker’s doctor directly or get workers to authorize employer communications with their doctor. Despite this rule, employers continue to request direct communication with doctors. Workers must push back adamantly or contact their unions for assistance.
Finally, employers participating in WCB appeals are granted full disclosure of the worker’s claim file. This can be highly intrusive of the worker’s personal integrity and constitutionally tone deaf, but the WCB continues to release this personal information. It is important to note the BC Federation of Labour opposes this intrusion as well as the employer’s right to participate in the appeal in any capacity.
By Merrill O’Donnell