Employee privacy in the accommodation process

February 09, 2014 - by: Keri Bennett 0 COMMENTS

By Keri Bennett

We all know employees across Canada have an obligation to participate in the accommodation process. That extends to providing proper medical documentation. If an employee fails to provide such documentation, surely he or she could be disciplined. Not necessarily.

Notwithstanding the employee’s obligation to participate in the accommodation process, an Ontario arbitrator has ruled that an employer was not entitled to discipline an employee who failed to consent to the release of personal medical information to support repeat absences over a span of eight years. But there can still be consequences to the employee.

Facts

The employee was employed as a general laborer. During his 12 years of employment, he was regularly absent from work during the summer months, relying on brief medical notes. He refused to provide any further medical information, arguing that it might lead to his employer knowing his medical condition.

When the employee again provided a brief medical note stating he was “unfit for work” for the next four weeks in June 2011 followed by a similar note in July 2011, the employer contacted the employee to ask for more information about his current restrictions and possible accommodations. The employee responded by laughing.

The employer followed up this phone conversation with a letter asking for further information in order to explore possible accommodations. The letter was accompanied by an authorization form and letter directing the employee’s doctor to provide the employer with medical information so that the employee could be better accommodated.

Noting that he had laughed at its earlier request, the company went on to state: “Please be advised that your response is wholly unacceptable. If you do not cooperate, without reasonable justification, you’ll be subject to discipline, up to and including discharge.”

The employee didn’t sign the authorization form, nor did he deliver the form or the accompanying letter to his doctor.

The employer sent similar letters and authorization forms to the employee over the course of 2011 and 2012, advising him that failing to provide the necessary information would subject him to discipline up to and including termination.

The employee continued to fail to provide the letters to his doctor. He subsequently received a three-day suspension, a 10-day suspension, and was ultimately discharged.

Decision

Arbitrator Diane L. Gee held that the employee was not insubordinate when he refused to consent to the release of his personal medical information.

The arbitrator reviewed the respective obligations of the employer and employee in the accommodation process, reaffirming that the employer is entitled to request sufficient evidence to support an employee’s absences and the ability to explore alternative accommodation.

The arbitrator also reiterated the employee’s duty to participate fully in the accommodation process, stating that an employee cannot force an employer to grant time off work by refusing to consent to release of medical information that can identify accommodation options. While employees are entitled to accommodation, they are not entitled to the accommodation “of their choosing.”

In addition, the employer in this case had a legitimate reason to investigate the early pattern of absences. The employer’s interest in obtaining sufficient medical information did not expire when the employee was medically cleared to return to work.

However, the arbitrator went on to say that employers cannot discipline an employee for refusing to release his or her personal health information. Relying on section 18 of the Ontario Personal Health Information Protection Act, which requires the consent of an individual for the collection, use, or disclosure of personal health information, the arbitrator determined that an employer cannot coerce an employee into signing an authorization for release of information. Such an action would put the doctor in the position of “unwittingly contravening the [Act],” which “flies in the face of protections afforded by the [Act] and cannot be condoned.”

As a result, the arbitrator rescinded the suspensions and termination. The arbitrator did indicate, however, that an employer could place an employee on administrative leave without compensation until such time as an employee provided its employer with information that was “legitimately connected to the accommodation process” and cooperated in the development of a possible accommodation plan.

Takeaway for employers

This decision does not amend the employer’s right to request sufficient medical information on an employee’s limitations, restrictions, and disability-related needs in order to assess an employee’s accommodation requirements. Similarly, the decision reaffirms an employee’s obligation to participate fully in the accommodation process.

What it makes clear, however, is that employees are entitled to refuse to consent to provide medical information. This is likely the case across most of Canada, given most provinces have similar health information privacy legislation. But employees do not do so without risk.

In the words of the arbitrator, employees who refuse to consent to the disclosure of relevant medical information must be prepared “to accept the consequences of taking that position.” Such consequences could include an administrative suspension without pay. This, in short, is good news for Canadian employers.

About Keri Bennett:
Keri Bennett is returning as an associate in the Labour, Employment and Human Rights Group in the fall of 2011. She will be engaged in a broad practice assisting employers with matters relating to restructuring, downsizing, human rights, employment agreements and terminations, labour relations and collective agreement interpretation.
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