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Employment Matters

When the Doctor’s Note is not Enough: Employer Requests for Independent Medical Examinations

By Nabila Qureshi

As discussed in a previous post, disability-related accommodation requests can be a challenge in terms of balancing the employer’s right to medical information about the employee with the employee’s own right to privacy.

Employers are entitled to request medical information in order to determine the appropriate accommodation for employees. However, there may be situations in which the information provided by an employee’s treating physician appears to be inaccurate or inadequate. In such cases an employer can request further information or clarification, but when can they specifically ask for an Independent Medical Examination (i.e. an assessment from a doctor or specialist who has not previously been involved with the employee)?

Judicial guidance on this topic is limited, but the Ontario Human Rights Tribunal decision in Bottiglia v Ottawa Catholic School Board (“Bottiglia”) is helpful. The overarching question to consider is whether, taking into consideration all circumstances of the case, the employer’s request for an Independent Medical Examination (“IME”) is reasonable. Let’s examine the case to see what this means.

In Bottiglia, the employee was a superintendent at a school board who went on a 2-year medical leave. As he prepared to return to work, the employer asked him to undergo an IME as a pre-condition for his return. The employee rejected the request on the basis that the medical opinion which his treating physician had initially provided contained sufficient information about his accommodation needs upon his return. The employer disagreed, arguing that the medical documents provided by the employee were deficient and that it needed an IME to determine appropriate accommodations.

The HRTO found that the employer’s request for an IME was justified for several reasons. First, the accommodation plan proposed by the employee’s physician was unusually onerous. For example, it proposed a 6-12 month transition period for the employee when the norm for other similarly situated employees had been 6-8 weeks. Second, the plan did not provide adequate reasons for the unusual recommended accommodations. Third, there were significant and unexpected changes in the employee’s stated ability to return over a short time frame. The employee had submitted multiple return to work dates. Fourth, the accommodation plan failed to address the unique characteristics of the employee’s position and duties. In fact, the physician admitted under cross-examination that he had made boilerplate recommendations for the employee’s accommodation needs.

In addition, the HRTO held that the employer had reason to question whether the employee’s return to work plan was premature given the onerous accommodations requested, and the fact that the proposed return to work date, after the employee had been absent for over two years, coincided with the expiry of the employee’s paid leave.

In light of these many deficiencies taken together, the HRTO held that the employer “had a reasonable and bona fide reason to question the adequacy and reliability of the information the applicant provided and the legitimacy of the applicant’s proposed accommodation and to consequently seek an independent medical assessment.”

Key takeaways:

- Employers should request an IME only in exceptional circumstances. Generally, where an employer is provided inadequate medical information in relation to an accommodation request, it should pursue less intrusive methods for obtaining the needed information, such as requesting further information or clarification from the provider of the employee’s medical information.

-However, an IME may be warranted in certain cases. The overarching question to consider is whether, in all circumstances of the case, the employer’s request for an IME is reasonable.

-To establish that the request is “reasonable”, the employer should demonstrate that (1) the medical information provided by the employee is inaccurate, inadequate or unreliable; and (2) information to be obtained from an IME is necessary in order to determine the appropriate accommodation for the employee.

-Some indicators of inaccurate, inadequate or unreliable medical information include: (1) recommendation of unusually onerous accommodations without explanation or supporting reasons; and (2) boilerplate recommendations about accommodation of the employee which are not specifically tailored to his or her disability or job duties.

– An employer may also be entitled to an IME where it has a bona fide reason to question whether an employee on disability leave is truly ready to return to work. This may occur, for example, where the employee seeks unusually onerous accommodation and where the proposed return to work date coincides with the expiry of his or her paid leave.

– As a best practice, an IME should be conducted by a physician that is agreeable to both the employer and the employee.

- Employees are expected to meaningfully engage in the accommodation process and provide employers with a reasonable amount of information that will allow employers to assess accommodation options. However, a failure to provide accurate and needed medical information may lead to an Independent Medical Examination.

By Karimjee Greene LLP April 3, 2017

DeafBlind Ontario’s St. Patrick’s Day Achilles Event

Karimjee Greene LLP is proud to announce its sponsorship for the annual St. Patrick’s Day Achilles event held on March 12, 2017 hosted by DeafBlind Ontario.

By Karimjee Greene LLP March 13, 2017

Policy Statement Released by OHRC Provides Guidance on Medical Documentation for Disability Claims

Kumail Karimjee was recently quoted in an article outlining the types of medical documentation required when a disability claim is made for accommodation.

To read the full article and the OHRC policy statement, click here.

By Karimjee Greene LLP March 6, 2017

Uber Drivers Claim They Are Employees

A provincial review of workplace laws could overtake a class-action lawsuit by Canadian Uber drivers who want the company to recognize them as employees. The recently filed proposed class action is the latest in a series of suits brought in various jurisdictions alleging Uber drivers are employees, rather than independent contractors, as the ride-sharing company currently categorizes them.

Read Kumail Karimjee‘s full article here.

By Karimjee Greene LLP March 3, 2017

18th Annual Employment Law Summit

Kumail Karimjee is honoured to be co-chairing the Law Society of Upper Canada’s upcoming 18th Annual Employment Law Summit.  The seminar will take place on October 18, 2017.

More information to come.

By Karimjee Greene LLP February 24, 2017

15th Annual Current Issues in Employment Law

Kumail Karimjee will be speaking at the Ontario Bar Associations 15th Annual Current Issues in Employment Law seminar on strategies for managing professionalism challenges in employment mediation. The seminar will take place on May 4, 2017.

See full program agenda here.

By Karimjee Greene LLP

What Can an Employer Request from an Employee for Disability-Related Accommodation Requests?

When an employee makes a disability-related request for accommodation, the employer has a legal duty to accommodate the request up to the point of undue hardship. However, problems can arise when an employee provides medical documentation too ambiguous to support the request, or when an employer requests more medical information than is required to determine the appropriate accommodation.

The Ontario Human Rights Commission recently released a policy position statement which sheds some light on what medical information should be provided to support an accommodation request.

The Type and Scope of Medical Information:

The policy position, as well as section 8.7 of the OHRC’s Policy on ableism and discrimination based on disability, address the type and scope of medical information that an employee should provide when requesting accommodation. This information should include:

– 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

– the type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job

– regular updates about when the person expects to come back to work, if they are on leave

Generally, the accommodation provider is not entitled to know a person’s confidential medical information, including the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation sought, or the person’s needs are complex, challenging or unclear and more information is needed.

Respecting the Employee’s Privacy and Dignity: Focus on the Functional Limitations, Not the Diagnosis

Employers should be careful to provide accommodation in a way that respects the dignity and privacy of persons with disabilities. This means that:

– When requesting medical information, the focus should always be on the functional limitations associated with the disability, rather than a person’s diagnosis.

– Overboard requests for private medical information such as diagnostic information, coupled with stigma against disabilities, can mean that requests for diagnostic information pose a barrier to requests for accommodation.

– Where an organization requires more information about a person’s disability, the information requested must be the least intrusive of the person’s privacy, while still providing sufficient information to make an informed decision about accommodation.

Stay tuned for a follow-up post on when an employer can request an Independent Medical Examination from an employee who has requested accommodation for a disability.

By Karimjee Greene LLP February 23, 2017

Karimjee Greene LLP Sponsors the Assaulted Women’s Hotline

Karimjee Greene LLP recently sponsored the Assaulted Women’s Hotline at the Helpline Gala, an evening dedicated to fundraising and continuing to raise awareness for violence against women, in Ontario and beyond..

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Law Society of Upper Canada

Kumail Karimjee spoke at the Law Society of Upper Canada’s 17th Annual Employment Law Summit.  Kumail addressed the topic of constructive dismissal.

 

Read Kumail’s paper here.

By Karimjee Greene LLP October 18, 2016

Human Rights and Housing

Kumail Karimjee spoke at an event hosted by the Cooperative Housing Federation of Toronto on Aging in Place.  He discussed human rights, housing and the duty to accommodate residents with disability related needs.

By Karimjee Greene LLP April 27, 2016