Can a Request For More Medical Information in The Workplace be Regarded as Discrimination?
It is not always appropriate for employers to request doctor’s notes from employees. Done improperly, there is a risk that the request for more medical information in the workplace can be construed as discriminatory conduct contrary to human rights legislation.
Employers must accommodate employee disabilities to the point of undue hardship. This includes providing day-to-day workplace accommodations and providing time away from work as needed. The “undue hardship” standard is a very high standard.
While there is no general prohibition preventing an employer from requesting a doctor’s note in appropriate circumstances, it is usually inappropriate to request for more medical information in the workplace to second-guess or prove an employee’s request for disability accommodation.
One Ontario Human Rights Commission (“OHRC”) policy statement suggests requests for “second opinions” should not be made “to refute whether the employee has the disability in the first place or to avoid providing the accommodation.” Moreover, if requests for doctor’s notes are not necessary, are imposed differently depending on the type of disability, or have the effect of prolonging an employee’s absence, such requests may be considered discriminatory.
The employer must accept accommodation requests in good faith unless there are legitimate reasons for acting otherwise. The employee must answer questions or provide information about relevant restrictions.
Employers should limit requests for more medical information in the workplace to those reasonably related to the nature of the employee’s limitation or restriction, as necessary to respond to accommodation requests. This can mean requesting a doctor’s note where the information sought is “carefully considered and limited to the information that is reasonable required to assess needs and make appropriate accommodation.”
As such, usually, a suitable doctor’s note would be geared towards clarifying accommodation needs. It might include information clarifying:
– 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; or
– the type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job;
The focus of an appropriate letter is on the functional limitations associated with the disability (rather than on a person’s diagnosis or the cause, symptoms, or treatment of the disability – unless these clearly relate to the accommodation being sought, or the person’s needs are complex, challenging or unclear and more information is needed).
As an example, an employee might indicate to an employer that they are not capable of conducting air travel for business amid COVID because of a pre-condition which makes them particularly susceptible. An employer should accept the employee’s indication of disability in good faith. But the employer could ask for a doctor’s note to answer questions clarifying the functional limitations. For instance, the employer might ask the employee to have their doctor answer:
“Must [employee] avoid all air travel (including domestic travel), or is there some way she can continue to safely undertake the air travel required for work with appropriate accommodation such as by wearing PPE or through other steps?”
The employee and employer are expected to collaborate in good faith to find workable solutions in response to accommodation requests to the point of undue hardship, and requests for appropriate information from a doctor can be a legitimate part of that process.
But where the value of having a doctor’s note is questionable, the ORHC suggests that requesting one could be seen as discriminatory. It cautions against insisting upon “same-day” doctor’s notes for absences. Similarly, in the context of COVID, some extra leniency may be required by employers, recognizing that measures put in place by health authorities may make it more difficult for employees to see their doctors to obtain notes.
While there is no specific legislation addressing a request for more medical information in the workplace during COVID with respect to accommodation, there has been specific legislation passed removing the requirement for a doctor’s note if an employee takes an unpaid infectious disease leave in Ontario and removing the requirement under the Employment Insurance Act for workers claiming sickness benefits. This suggests a general trend, during COVID, of relaxing the need for employee’s to obtain doctor’s notes in the employment context. Employers should exercise additional care in light of this trend when deciding whether a request for a doctor’s note is necessary or appropriate.
In general, employers must approach each situation judiciously and accommodate legitimate requests to the point of “undue hardship.”
To better understand your entitlements and explore the viability of a claim during these unprecedented times, we encourage employees to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you’re looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.
Author: Ben Hahn
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