Employee absenteeism is one of the most perplexing and difficult issues facing employers today. It is also one of the most costly. In 2013, the Conference Board of Canada reported that the Canadian economy lost an estimated $16.6 billion in 2012 due to employee absenteeism alone. The Board, surprisingly, also found that less than half of employers were tracking absenteeism in their respective workplaces and their employees’ reasons.
Although concerns with protecting employee privacy are sometimes raised as reasons why no medical requests are even made of employees (or why an employee’s refusal to provide the employer with medical information is simply accepted), the reality is that privacy laws permit employers to request medical information from an employee that is reasonably necessary to determine whether an absence from work is legitimate and whether a duty to accommodate the employee exists (and to what extent). In fact, employees who refuse to respond to these medical requests may face a number of consequences, including termination of their employment for just cause.
So, what kinds of medical requests are reasonable?
The answer depends on the context (which includes what the parties may already have agreed to in their employment agreement), but adjudicators have traditionally found a very wide range of medical requests to be permissible, including questions regarding:
- the employee’s prognosis for full or partial recovery;
- what duties the employee can and cannot perform (i.e. the employee’s functional capabilities, limitations, and restrictions);
- whether the employee was prescribed or recommended treatment and whether the employee is following the course of treatment as prescribed or recommended;
- the employee’s expected date of return, or the expected duration of the absence; and
- evidence that the employee is fit to return to his or her duties before a return to work occurs.
The latter request is particularly important for employers faced with facilitating a return to work after a long-term absence. Employers will usually want to ensure that the employee’s return to work is medically approved and any required accommodations explored before the return happens.
The kinds of medical requests that adjudicators have been found to be unreasonable (at least at first instance) is equally as fact dependent (including based on what the parties have already agreed to and what the employee has already voluntarily disclosed to the employer about their condition), but adjudicators have challenged employers requesting the following:
- the employee’s diagnosis;
- the kind of treatment the employee is receiving;
- direct contact with the employee’s doctor; and
- that the employee see a doctor of the employer’s choosing.
Getting the right information, however, is often a process and is context dependent. In more complicated cases, more probing questions and follow up will be appropriate, including in these “usually off limit” categories of medical requests. Thus, adjudicators have recognized exceptions and permitted employers to make these kinds of requests in a variety of circumstances (e.g. where the information is needed for the accommodation process, to mitigate a serious workplace safety issue, or to address inconsistencies in medical reports received from the employee’s doctor). Given the potential challenges to these requests, employers are best to first consider whether these exceptions indeed apply.
It remains to be seen what 2016 has in store for employers, but employers can take comfort in knowing that they can, and indeed may be legally required to, ask for something more than just the one-line prescription pad note.