June 11, 2015

The conflict between employee privacy rights and the need for employers to have reliable, accurate information about an employee’s medical condition – in order to fulfill the duty to accommodate, determine eligibility for benefits, and manage workplace attendance – comes into sharp focus when an employer seeks an independent medical examination (IME) in order to verify or obtain information. What are the ground rules respecting employer requests for IMEs? Are such requests becoming more common? Are IMEs to be sought only as a “last resort”? How can workplace parties ensure that privacy rights are respected in the IME process? Lancaster’s panel of experts will address these and the following questions:

  • Requesting independent medical exams: What are legitimate purposes for which an employer can request an IME? Assessing accommodation options or fitness to return to work? Determining eligibility for benefits? Verifying the legitimacy of employee absence from work? Investigating the cause of strange or erratic behaviour by an employee? Is there a general consensus that IMEs should be a “rare” occurrence, and should be requested only as a “last resort” after other sources of information have been exhausted? Will the threshold for requesting an IME differ depending on the purpose for which the IME is sought? Is the threshold different where an employer seeks an IME in relation to a psychological, as opposed to a physical, condition? Are psychological exams considered more privacy-intrusive? What is the union’s role in the IME process? Can the union object to the employer’s request for an independent medical examination? When should a union advise an employee not to attend? In what circumstances will arbitrators order an employee to undergo an IME? Are the considerations in such circumstances different than those cases in which an employer requests an IME?
  • Conducting independent medical exams: Is an employer entitled to require that an examination be conducted by a physician of its choosing, or must the parties mutually agree on the physician? When should a union consider objecting to the employer’s choice of physician? Which party should bear the costs of an IME?
  • Obtaining information from independent medical exams: What type of information can an employer legally require from an IME? Can the employer require the physician to provide a diagnosis? A prognosis? A complete medical history? Recommendations for treatment? 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.)? Can the employer pose specific questions to the independent medical examiner in its request for information? If so, how specific should these questions be? Can the union or employee object if the questions are too “leading”?
  • Handling privacy and disclosure issues: What confidentiality/privacy safeguards should be adopted in relation to an IME? How much background information should/can be provided to the independent medical examiner? Must the information provided also be disclosed to the employee and/or the union? Who is entitled to receive a copy of the IME report? What privacy rules apply to disclosure of the report?
  • Consequences of refusing an IME: Can an employee be fired, suspended, or otherwise held out of service for refusing to attend an IME? Can disability benefits be suspended or terminated where an employee refuses a legitimate request to attend an IME?