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Your Medical Information & Independent Medical Exams

December 7, 2019 at 10:16am

If you are returning to work after an illness, injury, or absence, sometimes your employer will make a request for your private medical information to determine your fitness to return.

It’s important to know that your employer does not have a broad unrestricted right to access your confidential medical information. They don’t just get to see and know whatever they want when it comes to your health history.

In some cases, however, your employer may demand that you go through an Independent Medical Examination (IME). But your employer has a limited right to request this as well. To make this request, your employer must meet certain criteria that makes the IME a reasonable demand under the circumstances.

Contact your Union Rep first before you provide more info or agree to an IME

Speak to your Union Representative first if, upon your return to work following an injury, illness, or absence, your employer requests any/all of the following:

  • Additional medical information;
  • That you visit a company doctor; and/or,
  • That you sign a blanket consent form for a company doctor to consult with your own doctor.

Arbitration

An arbitration over a demand for additional medical information or IME often comes down to balancing an employee’s right to privacy versus the employer’s right to manage its workplace. In these cases, Arbitrators tend to favour the means of getting the required medical information. This includes an employee’s fitness to work, that is the least intrusive to the employee. Depending on the circumstances, this could mean:

  • The employer should request medical information from the employee’s own physician;
  • If the employer has reasonable grounds to be unsatisfied with the information provided, the employer may seek additional proof or information (by way of the employee’s physician);
  • If reasonable concerns persist, the employer may seek an IME[1].

Arbitrators tend to uphold that an employer may reasonably request an IME where the information provided is missing relevant details, inadequate, or incomplete.[2]

Mental Health Records

When it comes to mental health information, additional considerations may apply. There is a lot of persistent social stigma over mental health. This is especially true when it comes to disclosing conditions and the often-invisible nature of symptoms. Sometimes, this leads employers to make more intrusive and unreasonable requests for medical documentation when it comes to mental health.

Employee privacy is extremely important in these cases. As a result, Arbitrators generally place a higher burden on employers to justify their request for mental health records:

  • The information requested must be arguably relevant;
  • The request must satisfy the Arbitrator that the employer is not on a ‘fishing expedition;’
  • The information requested must be specific so there is no dispute as to what is desired;
  • There must be a clear connection between the information requested and the arguments made at the hearing;
  • The Arbitrator must be satisfied that the disclosure will not cause undue prejudice;
  • Where, on reasonable grounds, the information offered by the employee does not satisfy the employer, the employer may demand that the employee secure additional medical certification or undergo further medical examination.[3]

What is Undue Prejudice?

Undue prejudice in this case means “improper or unfair treatment amounting to something less than irreparable harm.” In other words, once the information is known, it cannot be unknown and therefore could alter the way the employee is treated by the employer/in the workplace. When it comes to an employee’s mental health history, the Arbitrator needs to be sure that the disclosure of any information will not cause unfair treatment of the employee.

So, when it comes to the type of medical information an employer may be entitled to, Arbitrators tend to recognize that the fluctuating nature of mental health conditions sometimes makes precise definition and diagnosis difficult.[4]  As a result, an employer’s entitlement to information about the cause of an employee’s disability, diagnosis, symptoms, or treatment should not be presumed unless such information is clearly related to the accommodation sought, or the employee’s needs are particularly complex.[5]

Ultimately, when in doubt and before you consent to an employer’s request for medical information, speak to your Union Representative.


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[1] Davis v Sandringham Care Centre, 2015 CarswellBC 2881 (BC HRT).
[2] Ibid.
[3] Becker Milk Co. v. Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647, 1996 CarswellOnt 6109 (Joyce) at para 23.
[4] Mellon v. Human Resources Development Canada, 2006 CHRT 3 at para 99, as cited in OHRC “Policy on preventing discrimination based on mental health disabilities and addictions.”
[5] OHRC “Policy on preventing discrimination based on mental health disabilities and addictions.”