Accommodation, Medical Certificates and Medical Evaluations by Health Canada

 

 

Why do employers sometimes request a medical evaluation?
In theory, a medical evaluation for work purposes is performed by your doctor or the employer’s doctor in order to determine if you are able to work without harming the health of others or your own (e.g. return to work or a particular medical condition), or if you meet the medical requirements for certain jobs (e.g. tests of physical ability required for certain jobs), to assess whether you are fit to work under specific conditions of employment (e.g. work in remote areas) or simply to determine under what conditions or restrictions you are able to work.

“Fitness to work evaluations are provided to determine if an employee has been affected by a workplace hazard and/or is medically fit to safely and efficiently perform the tasks of a specific job. The evaluations are carried out with the employee's consent and with input from the treating physician, if any.” (Occupational Health Evaluation Standard – TB)

Under what circumstances am I required to provide medical information to my employer?
It is the responsibility of the employee to provide the medical documentation necessary to allow the employer to comply with the duty to accommodate the employee’s condition.

The Human Rights Commission interpreted the three-part Meiorin test in such a way as to establish the right of employees to facilitate the accommodation process (September 2004 Queen's Human Rights Bulletin- Disabilities and the Duty to Accommodate).
Also, the Court of Appeal held that the employee knowingly failed to comply with her duty to facilitate the accommodation process (L.B. (Committee of) v. Newfoundland (Human Rights Commission) (2002) NFCA 38, Case Number: 99/67).

When accommodating an employee with a disability, the employer may, in many cases, require some medical information, such as the employee’s limitations, in order to assess the necessary accommodations. However, the employer may only request information needed for this specific purpose.

Also, certain disabilities are obvious (e.g. a physical disability) and such inquiries might be unnecessary.

Generally, human rights courts and arbitrators protect the rights of employees to keep medical information confidential and do not allow the employer to have access thereto unless it can be demonstrated that such information is reasonably necessary to achieve one of the following four legitimate organisational objectives:

This does not necessarily entitle an employer to have access to anything other than information that is strictly necessary and the diagnosis. The type of medical treatment the employee is undergoing and the type of medication prescribed is not generally considered strictly necessary. (SGM)

What are my obligations as an employee?
According to the policy of accommodation of the Treasury Board, the employer declares that:
“Employees must:

In general, the employee must report medical conditions so that the employer can take adequate measures and should work with the employer to develop accommodation measures.

What medical information can my employer obtain from my doctor or from the medical assessment?
The employer has no inherent right to medical information in addition to what is provided for in collective agreements and, in fact, has no right to any information without the employee’s consent.

At any time, the level of information required must strike a balance between the employer’s real and reasonable “need to know" and the employee’s "right to privacy". Moreover, the level of information required should be proportionate to the situation. For example, in a complex case of accommodation, a higher degree of medical information could be justified than in a case of the common cold. The nature of the disease itself also has a bearing on the scope of the medical information made available to the employer. Thus, medical information relating to a physical injury is considered less intrusive than in the case of a mental incapacity. Each case must be analyzed individually, but usually the only medical information generally necessary for accommodating a job position for someone with a disability are the limitations and medical restrictions of the employee.

It should be noted that certain information may sometimes be required for purposes of receiving benefits (sick pay), requesting accommodation, and in certain particular situations involving performance management or work attendance.

While it is the employee’s responsibility to provide information that will facilitate the assessment of his/her application for accommodation, it is unnecessary and often not recommended to transmit information regarding the entire medical record, including information relating to the disability and the diagnosis, except in certain unusual cases. If you are not sure how to proceed, discuss the matter with your CAPE labour relations officer.

How should an employer normally obtain information required for purposes of accommodation?
The employee should be the primary source of information about the effects of the disease and should provide input of useful accommodations (Guidelines for Assessing Persons with Disabilities - CT). Thereafter, if necessary, any additional medical information required should first and foremost be obtained from the treating physician of the employee. Case law confirms that the medical records of the treating physician should be considered and if the information produced by the employee is inadequate or inconsistent with other evidence, other options for obtaining additional information should be considered before imposing a medical evaluation by the employer’s physician, which is considered to be a "drastic action". (Canada (Attorney General v. Grover. Federal Court. (2007) F.C.J. No. 58 (QL))

In the Desormeaux case, the employer rejected a medical evaluation and mistakenly fires a chronically absent employee with a disability. The Human Rights Tribunal establishes the legitimacy of the evaluation and denounced the refusal of the employer to accommodate the employee to the point of undue hardship. (September 2004 Queen's Human Rights Bulletin-Disabilities and the Duty to Accommodate).

(Desormeaux v. Ottawa-Carleton Regional Transit Comm. (NO2) (2003), 46 CHRR D / 1, 2003 TCDP 2.)
Reasoning of the Supreme Court of Canada:
The employer determined that the treating physician was not qualified to evaluate the mental condition of the employee and failed to accommodate the employee to the point of undue hardship by rejecting legitimate medical evidence that established that the employee had a chronic debilitating disability which had improved over time. The employer should have accepted the medical evidence of the treating physician and made appropriate alternative work arrangements for workers with disabilities.

Thus, as part of a request for accommodation, if the employee’s statement is not enough and if the employer wishes to have additional information, the employee may submit a medical certificate stating the limitations and restrictions, and justifying an absence, if necessary. The employer may request more information from the employee’s treating physician with the employee’s consent. Again, case law indicates that it is the employer’s responsibility to clearly explain to the employee the reasons why he/she believes more information is needed and the possible ways of responding to legitimate requests for additional information, while taking into consideration the employee’s right to privacy and the opportunity to respond to the employer's objections and produce additional information if needed.

In some cases, the family doctor may not be the most appropriate evaluator, such as in the case of a particularly complex injury or disease that only an expert would be able to deal with (Canadian Union of Public Employees, local 831 v. Bramption (City) (Brand Grievance), 2008. O.L.A.AA. No 359 (MacDowell). Canadian Union of Public Employees, Local 966 v. Caledon (Town) (Deforest Grievance). (2008) O.L.A.A. No 388 (MacDowell)) or if the doctor is either unable or unwilling to answer questions. But even in such cases, before forcing a medical evaluation, the law requires the employer to demonstrate that the information is “necessary” due to a “probable and legitimate concern” based on “substantive” evidence, which, in fact, only applies in very rare cases (See “Grover” above). Moreover, even in complex cases, the authority and expertise of the treating physician regarding the effects on the medical condition of the employee has been recognised.

It is therefore noteworthy that the employer cannot require that the employee be evaluated by his/her medical evaluator, Health Canada, except in certain cases where the collective agreement is clear on the matter, which is not the case with groups of employees that are members of CAPE:

Ontario Public Service Employees Union v. Ontario (Ministry of Natural Resources), (2008) O.G.S.B.A. 90 (QL). Even in such cases, case law indicates that when there is a collective agreement clause that grants the employer the right to seek an independent medical examination, such a request by the employer must be made on a well-founded basis that is reasonably supported by objective evidence. Evidence of an existing medical condition is a prerequisite for justifying a request for medical evaluation.

Am I allowed to choose who will examine me?
When a specialist’s opinion is deemed necessary, the employee has the right to choose who will examine him/her. Sometimes, the parties must come to a mutual agreement on a specialist for the purposes of an independent examination.

Again, the policy of the Treasury Board (7.1.3.2) and case law require the employer to first discuss the matter with the employee in order to identify the necessary work accommodation measures since the employee is in the best position to know what works and what does not work for his/her health. When deemed necessary to fulfill his/her obligations, the employer's representative may request additional information from the treating physician and on certain occasions, request another evaluation by Health Canada if it is reasonable to do so. (Occupational Evaluation Standard – TB)

The employer must, however, inform the employee of the reasons for this examination request which, again, must be reasonable. (Occupational Evaluation Standard – TB)

This fact, however, does not relieve the employee of the obligation to provide any medical information required for the accommodation and does not change the fact that any delays in providing said information could delay the employee’s return to a job position with suitable work duties, and more than likely justify the employer to delay the requested accommodation until the required information is received.

My employer wants me to undergo a medical evaluation by Health Canada. Am I required to comply?
While the person requesting an accommodation has the right to privacy, the employer or service provider has the right (and need) to obtain information that will help determine appropriate accommodation measures. In recent years, the burden of protecting privacy and personal information weighs more heavily in favour of the employee, especially with regard to medical information. Control over medical information is being considered to an ever greater extent an essential aspect of a person’s right to privacy, with regard to their bodily integrity and their choice of healthcare professionals, which is violated if an employee undergoes a medical examination against his/her will. The court has made it clear that the employer has no inherent right to demand a medical evaluation unless the collective agreement expressly provides that the employee disclose said information, and yet even under those circumstances the courts have refused to grant the employer the "right" to require an employee to undergo a medical examination by a physician working for or chosen by the employer.

For CAPE members, the collective agreements provide for disclosure of any medical information that may be required for the granting of benefits such as sick leave (e.g. EC, Art. 22.02 and 22.03). This information must 'convince' the employer of the employee’s condition. In any case, the aspects of reasonableness and good faith still apply. Furthermore, the employer is only entitled to the information that is strictly necessary for handling the case and not the employee's entire medical record.

Can my employer force me to undergo a medical examination under the guise of ensuring health and safety at work?
In the rare cases where the employer could raise the objection of danger to health and safety of the workplace, the employer must demonstrate that there is "a reasonable and probable" cause to believe that such a threat (See “Grover” above) exists and that you are part of said threat. If you think your employer’s rationale is flawed, speak with your CAPE labour relations officer.

Can my employer force me to see a doctor during my non-working hours?
If the employer asks you to undergo additional medical tests, and you agree to do so, they would normally and to the extent possible, be done during your regular working hours, in other words, during paid time. After all, it is your employer that is dissatisfied with your treating physician’s opinion, not you.

Will the employer’s healthcare professional speak to me in my language of choice?
With respect to Health Canada: "Services offered to departments and employees by Health Canada should conform to the Official Languages Act and Treasury Board policy on the issue (art. 10)

Who will pay for the medical examinations and reports?
The employer pays the costs for examinations and reports from Health Canada as well as specialist services or specific tests (Occupational Evaluation Standard - TB)

Moreover, when an employee is required to travel for a medical exam, travel expenses must be reimbursed in accordance with the Treasury Board’s guidelines on travel or in accordance with the guidelines of other authorities. (Occupational Evaluation Standard - TB)

Can the employer disclose information about me to the healthcare professional?
It is important to note that in the case of the Treasury Board, the health care provider in the workplace is generally Health Canada.

When forwarding their evaluation request, some managers send the healthcare professional a letter stating what they seek to demonstrate, sometimes including non-medical factors and thus attempting to bias the physician before the physician even sees the employee. While the physician should be made aware of necessary information to make a proper evaluation, some information is irrelevant and should not be taken into consideration when evaluating the employee.

In fact, the employer should only communicate with the physician to provide explanations of what relevant information is required and what the employee’s work duties are. Moreover, the policy of the Treasury Board limits what information the employer should provide to the physician:

"A letter of explanation containing factual, objective and pertinent information related to the purpose of the referral to Health Canada as well as a completed "Job Analysis" form is forwarded to the occupational health physician. Health Canada will determine if other records or information are required throughout the process." (Occupational Evaluation Standard - TB)

The employer must also provide you with a copy of this letter. Otherwise, do not hesitate to demand a copy.

"The information that the manager provides to the physician shall be shared with the employee, including the reasons for the disclosure of said information. (Occupational Evaluation Standard - TB - 7.1.3.2).

If you consent to the fitness-to-work evaluation or any other form of request for additional information, we strongly urge you to demand in writing a copy of all documents provided to the healthcare professional.

Remember that the employer must obtain your written consent in order to proceed with the evaluation by a physician or a specialist. (Occupational Evaluation Standard - TB)

Which issues should be addressed during the employer’s health evaluation?
In all cases, occupational health evaluations commissioned by the employer should strictly stick to the issues relating to employment and should not replace medical examinations made by your personal or family physician.

"When a health condition exists, the diagnosis, adequacy of treatment, medical control, and the state of any resulting or residual impairment or limitation are all factors that will be considered in making an assessment determination usually in consultation with the treating physician." (Occupational Evaluation Standard – TB - Art 2.4.)

What information would the employer have a right to in the event of a long absence?
The employer shall maintain a safe working environment for employees and other users of the work environment while still being obliged to accommodate the employee's medical limitations to the point of undue hardship.

Faced with these obligations, the employer may be granted access to a wider range of medical information in the event of prolonged absence (Supreme Court of Canada - Honda Canada Inc. v. Keays, (2008) 2 S.C.R. 362), such as:

In the absence of special circumstances, this information shall be generally considered sufficient for the employer until the employee returns to work (SGM - Medical Privacy - Peter Englemann and Dan Palayew - 2009).

What are the contents of the Health Canada report?
According to Treasury Board policy:
“Following all health evaluations, Health Canada must send an assessment report to the employer indicating whether or not the employee is fit to work, whether or not he/she meets the health requirements, whether or not limitations are indicated, etc. Some advice on the functional capacity could also be included. However, this report should not contain any information relating to medical, psychological or psychiatric diagnosis.” (Evaluation Standard TB - Art. 9.5 and 8.1).

Who is entitled to receive my medical information?
The medical information should only be communicated to a person in the department authorised to receive confidential medical information. The manager and/or human resources consultant are not entitled to receive confidential medical information. Nevertheless, they can request the following information:

Such information should not appear in the person’s record.

What information will my manager have access to after the medical evaluation?
In its internal policy, the Treasury Board itself dictates certain limits on its departments:
“The assessing health professional discloses to the employer only (underlining ours) information that enables the employer to take appropriate measures, e.g. information on limitations related to the health requirements of the position. Confidential medical information is not provided unless it is required to determine appropriate accommodation strategies or options and is provided with the written consent of the individual.” (Evaluation Standard TB - 8.1, 9.5 and 9.6)

How is the confidentiality of medical records protected?
The medical information of federal employees is protected by two laws, the Privacy Act and the Personal Information Protection and Electronic Documents Act (PIPEDA).

The Privacy Act imposes obligations on federal government and its agencies by limiting the collection, use and disclosure of personal information. It also gives Canadians the right to access and to correct their own personal information that is held by federal organisations.

For its part, PIPEDA promulgates these rules for private sector organisations governed by the federal government.

The employer must treat as confidential the medical certificate and the results of the employee’s medical examinations.

In theory, the healthcare provider can only provide necessary advice and information to employers regarding the measures to be taken (e.g. restrictions). Confidential information, such as the diagnosis, should not be provided except with the permission of the employee. Again, vigilance is needed... You can request in writing a copy of the medical records and request that they be sent to your treating physician (Occupational Evaluation Standard - TB).

Medical records should be retained by Health Canada or the archives for a certain period of time. They should at no time appear in your personnel file (Occupational Evaluation Standard - TB).

The collective agreements also allow you to see your records. You can initial the pages to make sure no addition is made without you being informed.

May I receive a copy of the Health Canada report?
You are entitled to receive a copy of your medical record, including the written report from Health Canada, if necessary.
"Following completion of the evaluation, both the employer and the employee are provided with a written report concerning the employee's health capacity to carry out the duties of the position and outlining specific limitations or physical restrictions." (TB Policy - 7.1.3.4.)

"If a medical evaluation is performed by the employer’s physician, medical information can be forwarded to the treating physician with the individual's written request as candidates and employees remain under the care of their treating physician at all times.” (Occupational Evaluation Standard - TB).

What happens if my doctor’s report and the Health Canada report are not in agreement?
The duty to accommodate is tripartite and thus requires the employer to take into account the opinion of CAPE as well as that of the employee, including his doctor. To this end, note that the Court concluded that the employer must consider all data, including employee concerns and comments, in addition to medical evidence and his/her own observations. In addition, the employer must make good use of contributions from all parties concerned to demonstrate compliance with the multiparty aspect of the process of accommodation (Morris v. British Columbia Railway (May 1, 2003)).

Case law has held that the treating physician of an employee, even if he does not know the structure of specific jobs or departments and, therefore, is not in a position to indicate precisely what kind of job an employee is able to perform, may provide advice on the medical impact of the current job on the medical condition of an employee. Therefore, with regard to recommendations on the work environment and supervision of the employee, the treating physician’s authority and expertise have been recognised and the employer must take into consideration his/her medical recommendations (Civic Institute of Professional Personnel v. The City of Ottawa. (2009) O.L.A.A. No. 273 (QL)). If the reports of the employee’s treating physician state that the employee is fit to work, but the employer does not agree, it must be reasonably justified before seeking further medical tests because, again, the employee may be entitled to refuse if the request is unreasonable, unnecessary, or in bad faith.

If you are in doubt, the opinion of an independent third party could be recommended. Talk with your CAPE labour relations officer about this issue.

What happens if I refuse to submit to an independent medical examination?
Case law has established that the employer cannot force an employee to undergo an independent medical examination or discipline an employee who refuses to comply with a request to do so (Mitchnick & Etherington, Leading Cases on Labour Arbitration, Section 13.2.5 and Canadian Association of Industrial, Mechanical & Allied Workers, Local 12 v. Shell Canada Products Ltd. (1990), 14 L.A.C. (4th) 75 (Larson)). Nevertheless, you are obliged to cooperate and make sure that your employer has all the information needed to make a decision. Talk with your CAPE labour relations officer about this issue, since each case is unique.

What happens if the medical report finds that I do not satisfy the medical requirements for my job?
Unless this would cause the employer to have to take excessive measures (undue hardship), which is highly unlikely in public service, i.e. the employer in its broadest definition, the employer might need to take measures to accommodate someone with a disability. Further analysis of the situation might be needed, as each case is unique. The type of accommodation varies from person to person. If you are found unsuitable for any type of work, other measures may be taken such as medical retirement, for example.

Note that undue hardship has been defined by case law as a situation that could endanger the viability of the company, among others. A degree of hardship for the employer is "normal and expected" in a situation of accommodation.

Can the employer use the medical information in my performance review?
Medical information is strictly confidential and should under no circumstances appear in a performance review. Nevertheless, if you have performance problems that result from your medical condition, you can, and should if at all possible, tell your employer to take it into account so that you are not unfairly penalised.

Performance Review:
"The employer may attempt to request a health evaluation to determine if the employee is able to perform the duties of his/her position and thus, to some extent, determine whether the employee has a physical disability that hinders his/her level of performance, which could have an impact on the extent of the employer’s liability and his/her obligations toward the employee (e.g. obligation to accommodate versus disciplinary action). (Occupational Evaluation Standard - TB)


Is there any recourse if I am dissatisfied with a situation regarding a request for a medical evaluation?
The Treasury Board Secretariat monitors the use of the medical evaluation programme and reviews the complaints lodged by employees regarding said programme and the Human Rights Commission and the Privacy Commissioner. You can lodge a complaint directly with these entities. (Occupational Evaluation Standard - TB) In addition, a complaint relating to discrimination and the duty to accommodate, or a complaint concerning the application of an employer's policy may also be considered. Feel free to discuss this with your CAPE labour relations officer.