The issue of an employer’s right to itsemployees’ medical information is a fiercely contested one in the Ontario workplace. Ontario law provides employees with a degree of security that their employment will be protected while on medical leave. The Courts are still in the process of clearly defining the rights of each party vis-à-vis what constitutes reasonable access to medical information versus the competing right of an employee to privacy. Some important policy guidelines and legal decisions define the limits ofan employer’s ability to demand medical information.
In the Ontario Human Rights Commission’s publicationHuman Rights at Work, Third Edition, the Commission states that:
A request for a second opinion, an opinion from a specialist or an independent medical examination (IME) must be necessary to provide accommodation. Such a request should not be made to refute whether the employee has the disability in the first place or to avoid providing the accommodation.
Further, in Human Rights at Work, the Commission asserts that:
It is not normally advisable for an employer to second-guess the validity of an employee’s doctor’s advice, only on a suspicion that it is not objective because it is based on the employee’s own perceptions. Avoid challenging a medical note or requiring a second opinion unless there is evidence that the doctor’s recommendations are based on something other than his or her best opinion as to what is needed to make sure the patient recovers.
The Privacy Commissioner of Canada provided further clarification inFinding #233, 2003 CanLII 5181 (PCC), wherein the Commissioner found that the employer’s collection of employee health information was abusive inasmuch as the employer did not prove that it was necessary. In the context of employees’ medical leaves, the Commissioner found that organizations are entitled to ask for and obtain a medical certificate, but not entitled to ask for details about the nature of the illness. The Commissioner concluded that the employee’s complaint of breach of privacy by her employer was well founded.
Employers should be wary of demanding further medical particulars from employees on medical leave as they may find themselves overstepping the legal boundaries of their authority.Consult with one of our lawyers should you find yourself assessing the legal risk associated with requiring a second medical report from an employee.