Medical Notes, Specialist Reports and IMEs: Employee privacy vs. the employer’s right to know

Medical issues frequently arise in the workplace that lead to employer requests for medical information, such as fulfilling the duty to accommodate, determining eligibility for benefits, and managing workplace attendance. Obtaining accurate, reliable information while respecting employee privacy rights is often a difficult task, particularly where the information relates to a mental disability. In this session, medical and legal experts will provide guidance on the do’s and don’ts of accessing medical information, addressing the following issues:

• What constitutes appropriate questioning regarding an employee’s health and how is such questioning to be distinguished from overly intrusive or discriminatory inquiries?
• In general terms, what type of information can an employer legally request in the context of a workplace accommodation? What information is an employer entitled to request if the only accommodation sought is a period of absence from work? Does the length of the absence make a difference? What critical mistakes are made when requesting medical information and how can they be avoided?
• If an employee has submitted a medical certificate from his or her own physician supporting an accommodation or absence request, when will the employer be justified in seeking further information and/or a specialist report? What is the process that should be followed in such cases?
• When can an employer require an independent medical examination (IME)? Is the employer entitled to choose the physician conducting the examination? What is the union’s role in the IME process? What type of information can an employer legally require from an IME? Does the permissible scope of information depend on the reason for which the IME is sought (e.g. fitness to return to work, eligibility for benefits, etc.)?
• What steps must/should employers/unions take to protect the confidentiality of medical information in their possession?
• How does the litigation process (e.g. grievance arbitration, human rights proceeding, WSIB appeal) affect an employee’s privacy rights in his or her medical health records? Have recent decisions shown a trend towards providing greater protection for employee privacy?