The Give-and-Take of Workplace Accommodations

November 18, 2024 from Canadian HRReporter

Employers in Canada frequently encounter vague medical notes stating, “John cannot attend work for medical reasons.” This raises an important question: can employers ask for more details? In most cases, the answer is yes, within the bounds of human rights and privacy laws.

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The Duty to Accommodate

Under Canadian human rights legislation, employers must accommodate employees with disabilities to the point of undue hardship. However, this obligation is not one-sided. Employees requesting accommodations must meaningfully participate in the process, which includes providing sufficient medical information.

As the Supreme Court of Canada emphasized in Central Okanagan School District No. 23 v. Renaud:

“The search for accommodation is a multi-party inquiry… To facilitate the search for an accommodation, the complainant must do his or her part as well.”

This means employees must supply details about their disability, limitations, and the accommodations they require.

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Privacy Considerations in Accommodation

While employees have a right to privacy, this right is not absolute when it comes to workplace accommodations. In Fernie (City) v. CUPE, Local 2093, a British Columbia arbitrator upheld an employer’s decision to dismiss an employee for failing to provide sufficient medical documentation. The arbitrator ruled:

“An employee may rely on their privacy rights to refuse to provide adequate information… However, they do so at their peril.”

Similarly, the Ontario Human Rights Tribunal (Baber v. York Region District School Board) has stated that employees must outline how their disability-related needs interact with their job duties.

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What Information Can Employers Request?

The Ontario Human Rights Commission outlines that employees must provide:

• Proof of a disability.
• Limitations or needs arising from the disability.
• Whether they can perform essential job duties with or without accommodations.
• Types of accommodations needed.
• Updates on return-to-work timelines, if applicable.

In some cases, additional information, such as the nature of the disability or a diagnosis, may be necessary.

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Medical Information in Unionized Workplaces

In a unionized environment, employers may require more specific details, as outlined in Complex Services Inc v. Ontario Public Service Employees Union, Local 278. This may include:

• The nature of the illness and its manifestation as a disability.
• Prognosis and whether the condition is permanent or temporary.
• Restrictions and limitations related to job duties.
• Basis for medical conclusions, including exams or tests (not necessarily the results).
• Impact of treatments or medications on job performance.

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Jurisdiction-Specific Rules for Medical Notes

Employment standards laws vary across provinces regarding sick leave documentation:

• Alberta: Under Alberta’s Employment Standards Code, employers may require employees to provide medical documentation if they are absent for more than three consecutive days due to illness or injury. The documentation should include confirmation that the employee is unable to work and the estimated duration of the absence. However, employers cannot request detailed medical records or diagnosis without the employee’s consent.
• Ontario: Employers can request “evidence reasonable in the circumstances” for unpaid ESA sick leave, including confirmation of the absence and expected duration. Proposed legislation may prohibit requesting medical evidence for the three unpaid ESA sick days.
• Quebec: Medical notes may not be required for absences of three days or fewer under proposed legislation.
• Nova Scotia: Medical notes can only be required if an employee has missed more than five consecutive working days or if there have been at least two previous absences of five or fewer days in the preceding 12 months.
• Other Provinces: Newfoundland and Labrador, New Brunswick, and the Northwest Territories allow employers to request medical notes for absences exceeding three or four consecutive days.

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Balancing Rights and Responsibilities

Employers must strike a balance between respecting employee privacy and obtaining sufficient information to support accommodations or absences. Employers are encouraged to maintain transparency and focus on reasonable and necessary information to foster a cooperative workplace.

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