ABCs of Medical Information: How-to guidance on requesting, using and disclosing employee medical information

Health-related issues in the workplace often impel employers to request employees’ medical information — for example, medical documentation may be sought in granting sick leave and determining eligibility for benefits, fulfilling the duty to accommodate, and managing workplace attendance. Obtaining accurate, reliable information from qualified medical practitioners while respecting employee privacy rights is often a challenging task. Employers and unions both need to know where the line should be drawn between an employee’s right to privacy and the employer’s legitimate requirements for medical documentation. In this session, medical and legal experts will provide guidance on the “dos and don’ts” of accessing medical information, including the following issues:

• Making inquiries:When is it appropriate for an employer to request employee medical information? What questions regarding an employee’s health may appropriately be asked? How are such questions to be distinguished from overly intrusive, unnecessary, or discriminatory inquiries?
• Determining what information is necessary: In general, what types of information can an employer or union representative legally request? Does the purpose of the request — i.e. to substantiate an absence, facilitate a claim for sick leave, support a return to work, or arrange accommodation — affect the answer to this question? If so, what kinds of information can be sought, and when?
• Requesting medical information: What is the most effective way for employers and unions to request information from physicians or others? If an employee has already submitted a medical certificate from a physician, when will the employer be justified in seeking further information? What is the process that should be followed in such cases? What critical mistakes are commonly made when requesting medical information, and how can they be avoided?
• Confidentiality: What basic rules govern the handling, use, and disclosure of confidential employee medical information? What steps must/should employers and unions take to protect confidentiality?
• Specialists’ reports and independent medical examinations: When can an employer request information from a medical specialist, such as a psychiatrist? When can the employer require an employee to attend an independent medical examination? What is the union’s role in this process, and what advice should be given to an employee of whom such a request is made