November 28, 2012

Disagreements commonly arise regarding the extent of medical information employers may request for the purpose of establishing entitlement to sick leave and/or disability benefits. Employees making such claims are anxious to protect their privacy while employers want to ensure that employees’ claims are legitimate. Sometimes concern over the legitimacy of such claims even leads to covert surveillance of employees, which employees and unions see as particularly invasive of employees’ privacy. In this session experts will discuss the legal principles relevant to the conflict between employers’ desire to prevent sick leave abuse and employees’ privacy rights, paying particular attention to the following questions:

    • Establishing entitlement: Can employees be legally required to provide medical documentation of an illness to justify taking one or two “sick days?” What medical information is an employee required to provide in order to justify a short-term leave of absence and/or entitlement to short-term disability benefits? Must an employee provide a diagnosis, prognosis or information on treatment? What types of questions should employers avoid in forms or letters requesting information to justify short-term absences? What medical information can an employee be asked to provide to justify longer periods of absence or entitlement to long-term disability benefits? When can an absence be considered a long absence? In what circumstances can the employer or its agent consult the employee’s health care provider to clarify medical information it has received? When can an employer or an insurer request an independent medical examination to establish entitlement to benefits? In what way, if at all, does the information an employee may be required to provide to establish entitlement to benefits differ from the information an employee may be required to provide to facilitate workplace accommodation of a disability?
    • Preventing abuse: Before using private investigators to conduct surveillance, must employers have a reasonable basis to suspect that an employee may be abusing sick leave or disability benefits? Does the common law right to privacy recently recognized by the Ontario Court of Appeal affect the legality of conducting surveillance of employees? What remedies have arbitrators awarded employees who have been unjustly accused of or disciplined for abuse of sick leave or disability benefits? Will arbitrators award damages for mental distress? Will employers be held liable if insurance companies they contract to administer sick leave and disability benefits unreasonably deny benefits? When will an arbitrator uphold the discharge of an employee for sick leave abuse or for making fraudulent benefit claims?
    • Protecting privacy: Once the employer is in possession of health information, what steps does provincial law require the employer to take to shield that information? What steps does federal law require? What are some “best practices” for safeguarding employee health information? Are employees entitled to access and review their personal medical information held by employers and insurers? What restrictions on disclosure of medical information will arbitrators or courts order to protect an employee’s privacy during the arbitration/litigation process?