May 28, 2013

Requesting a medical examination to prove an employee’s fitness to work or to facilitate accommodation often opens a can of worms, creating disagreement and discord that all workplace parties would rather do without. Employees often resist the idea, feeling the core of their privacy rights, and even their physical integrity, is under attack. In some instances, however, independent medical examinations may agreed upon following a bilateral process that respects both employer interests and employee privacy rights. In this session experienced labour lawyers and a physician specializing in occupational medicine will answer key questions about parties’ legal obligations in this process and will provide guidance in making the process work.

    • When is an IME appropriate? What are legitimate reasons for an employer requesting some sort of medical exam? Must an employer try other ways of getting information adequate to address its legitimate concerns before requesting an independent medical exam? For example, must the employer be open to accepting a report from the employee’s own health care provider? If an employer is dissatisfied with information from an employee’s own physician is may it then require an independent medical exam? Can an employer request an independent medical exam simply because it does not believe or agree with the employee’s physician? In what circumstances might a union request a member to undergo an independent medical exam? In what circumstances will an arbitrator order an independent medical exam? When might professional rules and/or ethical concerns prohibit a physician from conducting an IME?
    • Who should conduct an IME? Is an employer entitled to unilaterally select a physician to perform an independent medical exam or must the physician be jointly chosen by employer and employee/union? What qualifications should an independent medical examiner have (e.g. professional designations, certifications, etc.)? If the employee’s mental health is in issue, should a psychologist or a psychiatrist conduct an evaluation of the employee? At arbitration will an arbitrator order an IME by a physician chosen by the employer or will the arbitrator unilaterally choose a physician or direct the parties to jointly choose a physician?
    • What information should an employer get from the IME? What type of information can an employer legally require from an independent medical exam? Can the employer require the physician to provide a diagnosis? A prognosis? A complete medical history? Recommendations for treatment? Will the scope of information the employer can require depend on the reason for the IME (e.g. fitness to work, assessing accommodation options, etc.)? What guidelines and/or professional rules guide physicians in providing information to employers and unions?
    • How should parties approach an IME? How should an employer or union approach an employee with a request for an independent medical exam? How should employers request information from independent medical examiners? How specific should the questions posed be? How much background information should be provided to the independent medical examiner? What professional rules, if any, govern the independent medical examiner’s conduct towards and relationship with the employee being examined? How should the examiner explain the process to the employee? How should the union explain the process?