When faced with a disability-related accommodation request, employers often have questions around the type and scope of medical information they can request from the employee in order to support the accommodation request and facilitate the accommodation process.
On Feb. 1, 2017, the Ontario Human Rights Commission (the OHRC) provided some guidance on this issue when it released its policy position on the types of medical documentation to be provided when a disability-related accommodation request is made. This policy position follows the launch of the OHRC’s updated “Policy on ableism and discrimination based on disability.”
In explaining its rationale for issuing the policy position, the OHRC recognized that there had been some confusion about the type and scope of medical information required to support an accommodation request. The OHRC also noted that ambiguous and vague medical information can prevent persons with disabilities from accessing appropriate accommodation, while over-broad requests for private medical information undermine the dignity and privacy of persons with disabilities.
According to the policy position, in order to support an accommodation request, medical information should include the following:
- 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 a person to fulfill the essential duties or requirements of the job; and
- Regular updates about when a person expects to come back to work, if they are on leave.
The policy position also makes clear that generally, an employer does not have the right to know an employee’s confidential medical information (such as the cause of disability, diagnosis, symptoms, or treatment), unless it clearly relates to the accommodation being sought, or the employee’s needs are complex or unclear. Where more information is needed, the information requested must be the least intrusive of the employee's privacy, while still providing enough information for an employer to make an informed decision about the accommodation. Ultimately, the focus should always be on the functional limitations associated with the disability, rather than the diagnosis.
While the OHRC’s policy statement does not have the force of law, it does hold persuasive value and provides a good indication of how adjudicators will evaluate the reasonableness of an employer’s request for additional medical information, as well as the sufficiency of the medical information provided to support an accommodation request.
Pamela J. Hinman is an associate with Cassels Brock's employment and labour group in Toronto, practicing in all areas of employment and labour law. She can be reached at (416) 640-6047 or phinman@CasselsBrock.com.
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