At Last - Guidance on Required Medical Documentation in Disability / Accommodation Situations

Mar 14, 2017

By Melanie Reist, Lawyer

 

One of the most difficult areas we confront as employment lawyers is the flow of medical information when managing issues of accommodation for people with disabilities.

It is important for employers and employees to understand their obligations under the Ontario Human Rights Code (“Code”).

The term “disability” has been interpreted broadly to include both present and past conditions, as well as a subjective component based on perception of disability.  Although the Code sets out various conditions, they are illustrative and not exhaustive.  The nature or degree of certain disabilities might render a disability “non-evident” to others.  However, not every medical condition constitutes a disability under the Code.  It is, however, the obligation of the employee who is establishing a disability and seeking accommodation to cooperate in the process. 

Once disability-related needs are known, the onus shifts to the employer to accommodate.  There may be instances where there is a reasonable basis to question the legitimacy of the employee’s request for accommodation or the adequacy of the medical information provided.  Employers may request confirmation or additional information from a qualified health care professional to obtain the needed information. 

There is often tension between the medical professions’ reluctance to divulge confidential patient information and the employer’s need to understand the nature of any restrictions in order to determine whether they can be accommodated.

The Ontario Human Rights Commission has finally come out with a policy which provides guidelines that will assist the parties in moving through what has been a grey area. 

The policy identifies that employees should provide documentation that includes the following information:

  • 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 accommodations;
  • 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 when the person expects to come back to work, if they are on leave.

The Commission also addresses situations where medical information sought goes beyond what is required to support an accommodation request.  The Commission highlighted that overly broad requests for private medical information (such as diagnostic information) undermine the dignity and privacy of people with disabilities.  The Commission went on to explain that the ongoing stigma associated with many disabilities, especially and including mental health disabilities, means the request for diagnostic information may pose a barrier to a person with disabilities proceeding with their accommodation request.

Hopefully with the introduction of these guidelines, the workplace parties will have a better understanding of what is appropriate to be asked and provided in the process of identifying restrictions and crafting accommodations that will support the participation of the person with disabilities in the workplace.  

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