Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on February 2, 2023 within the category "Medical-legal issues". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.


An employee on medical leave was dismissed after she refused to provide her employer with access to her medical records.  The employer was found to have breached the employee’s privacy by accessing medical information provided to the employer’s insurer.  The employer’s request for medical information and requirement that the employee attend an Independent Medical Examination was found to be unreasonable, and its refusal to consider a gradual return-to-work plan constituted discrimination on the basis of disability. 

Legal Citation

Wintemute v. TFI International Inc./TFI Transport 2 LP, 2022 CIRB 1049 (November 10, 2022) (Canada Industrial Relations Board Vice-chair, Jennifer Webster) 

Facts

The complainant worked as an environmental advisor for a Canadian transportation and logistics company with operations in and beyond Canada. 

In May 2018, she provided her employer with a medical note from her physician supporting a medical absence from work due to anxiety. 

Her employer’s insurer approved the complainant’s short-term disability benefits claim in July 2018. 

The complainant remained on medical leave, but, in October of 2018, the insurer denied her claim for long-term disability benefits on the basis that her disability related to a pre-existing condition. 

The complainant did not ask for a review of the insurer’s decision and the benefits ended in November of 2018.  She continued to remain on a disability leave. 

In March 2019, the complainant’s physician provided her with a medical note that cleared her for a gradual return to work. 

The employer refused the return-to-work plan, and stated that it required more information.  The employer requested and received her insurance file from the disability insurer.  It also requested the complainant to provide her medical file, and directed her to attend an Independent Medical Examination (IME).  She refused to consent to the release of her medical file and, although she initially refused the IME, she eventually agreed to participate. 

The employer told the complainant that she had until July 19, 2019 to provide access to her medical records.  If  she did not do so, it would terminate her employment.  She continued to refuse to provide access and, on July 22, the employer terminated her employment, stating that she hid information at the time of hiring and continued to be unable to perform her duties. 

In response, the complainant filed a complaint under s. 240(1) of the Canada Labour Code, alleging that she had been unjustly dismissed.  Her complainant was heard by the Canada Industrial Relations Board. 

Analysis

Vice-chair, Jennifer Webster, of the Canada Industrial Relations Board began by stating that an employee's medical information is confidential personal information, constituting a “fundamental privacy right.”  While an employer may require medical information in certain instances (such as to assess sick leave or to manage an accommodation request), an employer’s right to request medical information “must be exercised for reasonable and probable grounds.”  Although the employer may request additional information, the Board stated that “in most instances, the employer cannot access the confidential medical information without the employee’s consent.” 

After reviewing the case law, the vice-chair outlined the following principles regarding the disclosure of an employee’s medical information:

  • The issue of whether an employer can obtain additional medical information or records from an employee’s doctor involves a balancing of the employee's privacy rights and the employer's management rights;
  • An employer may request additional information where it has reasonable grounds to do so, and it must explain the reasons for its request;
  • The requested medical information must be sufficiently related to the issue under consideration, whether it is entitlement to sickness benefits or a requested return to work from medical leave; and
  • An employer must use the least intrusive method possible to access additional medical information. [Emphasis added]

The Board then considered the employer’s right to require an IME.  It noted that courts and arbitrators have confirmed the right of employers to ask employees seeking an accommodation to undergo an IME in some situations.  As with medical disclosure more broadly, the case law indicates that directions by employers for employees to participate in an IME must be reasonable and employers must first explore less intrusive options. 

While employees are not inherently required to participate in an IME as a part of the accommodation process, if an employer has “sufficient grounds to question the reliability and adequacy of the medical information provided by an employee’s doctor, the decision to pursue an IME could be deemed reasonable based on the circumstances.”  

This is not a “freestanding right” but one which depends on an employer justifying its request.  This justification will fail if the independent examiner’s objectivity is impaired as a result of information provided by the employer.  As a result, an employer has a duty to limit the information that it requires to only information pertaining to the nature of the employment. 

Vice-chair Webster then summarized the principles from the case law concerning an employer’s request for an IME: 

  • In the absence of a contractual or statutory right, an IME is only permitted in exceptional and rare circumstances;
  • Prior to requiring an IME, an employer has a duty to explain why a medical certificate is insufficient and explore other options for obtaining the necessary medical information;
  • An employer must have reasonable and probable grounds that the employee is unfit or that the return to work would be unsafe for the employee or others;
  • An employer must not impair the objectivity of the examiner through the information provided; and
  • The IME cannot proceed without the employee's consent, except in circumstances where the IME is prescribed by legislation, a collective agreement or other contract. [Emphasis added]

Applying these legal principles, the Board ruled that the employer was not permitted to obtain the complainant’s medical information from its benefits insurer, since the consent form did not permit the disclosure of information after the file was closed, as it had been.  It held that the employer had not established reasonable grounds for accessing the complainant’s medical records, and had thus breached the employee’s privacy right.  Nor did the employer establish the need for an IME: 

There must be exceptional and clear circumstances to justify an employer imposing an assessment on an employee by a doctor not of the employee's choosing. Such exceptional circumstances did not exist here. 

Similarly, the employer’s request to access the complainant’s complete medical file was held to be unreasonable.  Where the employer required clarifications, it should have been requested from the complainant’s physician. 

The employer was found to have discriminated against the complainant on the grounds of disability contrary to the Canadian Human Rights Act, given its unreasonable response to the complainant’s accommodation request concerning her gradual return to work.  

As remedies, the Board ordered the employer to pay the complainant $240,000 for lost earnings and pension contributions, interest amounting to $18,000, punitive damages of $50,000, compensation of the loss of group benefits in an amount to be determined, and some of her legal costs.  

Implications for Employers

Employers have a right to a limited amount of medical information, sufficient to address sick leave or accommodation issues.  Any requests for medical information or exams must be reasonable and the employer must first explore the least obtrusive means possible.  When clarifications are required, they should be requested from the employee’s chosen physician first, before an Independent Medical Examination is considered.  If an exam is completed, it must be conducted in an objective fashion, and the employer is only to provide specific employment-related information to the examiner.  

Implications for Unions

An employee can be required to disclose certain medical information that is necessary for his/her employer to assess the need for a sick leave or to evaluate an accommodation request.  Employees must cooperate with the accommodation process, and respond to reasonable requests from the employer.  In some exceptional circumstances, an employee may be required to participate in an Independent Medical Examination.  This request must be reasonable and justified by the employer, with the reasons clearly communicated to the employee.