Navigating innocent absenteeism of ill employees or employees with disabilities: The employer’s right to request medical documentation limited by privacy laws

In the post-pandemic era, employees and employers alike are more cognizant of the importance of keeping sick workers home to contain and prevent the spread of illness. In addition, employers should be keenly aware of their duty to make diligent efforts to accommodate employees with disabilities, which may include providing additional time off or permitting the taking of unpaid leave.

At the same time, chronic and excessive absences can have a significant impact on workplace operations, and may detrimentally affect employers’ bottom lines. As such, employers have a legitimate interest in counteracting chronic absenteeism and ensuring that healthy workers attend work, and only those employees who are actually unable to work due to illness or disability are granted leave or other benefits.

To ensure employees are taking sick leave or benefits for a bona fide reason, arbitrators have held that employers have the right to inquire into absences from work and employees have a continuing obligation to account for their absence, including absences due to illness. Employees have the obligation to provide their employers with “sufficient proof” that their absence was a result of illness or injury. Once an employee provides with the requisite proof of illness or injury, the right to the leave or other benefits is guaranteed.

What is considered “sufficient proof” often results in disagreement and will vary depending on the circumstances of each case. Relatively short-term absences typically only require a certificate from a qualified medical practitioner that certifies that the employee is unable to work for a specified period due to illness or injury, i.e. a doctor’s note. However, a generic doctor’s note will not always constitute “sufficient proof” and an employer may be justified in seeking more detailed medical information in situations where:

• there is a lengthy absence from work or consistent/regular absences;
• the employee is seeking to be accommodated with modified work duties;
• there are reasonable grounds to question the legitimacy of the medical leave; or
• there are reasonable grounds to question the employee’s fitness to return to work.

No matter the reason, a request for additional medical information invites a balance between the need for the information and the employee’s right to privacy over their medical information.

The Personal Health Information Act of Manitoba provides that a trustee of medical information can only collect as much personal health information as is reasonably necessary to accomplish the purpose for which it is collected. While not all employers are deemed to be trustees, it would be best practice for all employers to adopt a similar standard, and only collect medical information that would be “reasonably necessary.” Reasonably necessary has been defined as the minimum amount of reliable information that would satisfy the objective employer that the employee was in fact absent from work due to illness or injury, and therefore, is entitled to benefits claimed. Simply because it would be useful or desirable for an employer to have a broader range of information for administrative efficiency and convenience, does not mean that the employer is entitled to such additional information. The focus needs to be on necessity rather than usefulness.

In most circumstances, an employer can routinely seek the information reasonably necessary to determine:

• if the illness or injury is legitimate;
• the “nature of the illness,” meaning the general state of a person’s illness or injury in plain language without any technical medical details;
• when the symptoms first appeared or when any accident and/or surgery occurred;
• whether a treatment plan has been recommended or prescribed and whether it is being followed, but not the details of the treatment plan;
•  the first and/or most recent physician visit(s); and
• when the employee is likely to return to work.

Conversely, in most circumstances, it has been held that the following information is not reasonable for an employer to ask of their employee:

• the diagnosis;
• whether the employee had the same condition in the past and/or related diagnosis and/or treatment;
• details of the treatment;
• medications;
• names of other doctors currently or previously working with the employee;
• the specialty of any doctors;
• questions surrounding pregnancy; or
• details about the employee’s height or weight.

The 2022 Ontario arbitral award of Toronto Catholic School Board v Ontario English Catholic Teachers’ Association speaks to when an employer would be entitled to seek further medical information after already being provided a medical note.

In this case, a teacher had a poor attendance record, with a mixture of lengthy and intermittent absences over a long period of time without proper explanation other than that the teacher was off due to illness. Even though the teacher provided a doctor’s note for each absence, the employer was incurring costs as a result of the absences, and it made planning and programming for the school difficult. As such, the employer had a legitimate interest in determining whether the teacher required an accommodation, and if not, assurance that the teacher would maintain consistent attendance. 

As a result, when the teacher attempted to return to work following one of his medical leaves, the employer refused to accept the employee’s doctor’s note, which stated that the teacher was fit to return to work without restrictions. The employer requested that the teacher have his treating physician complete an additional medical questionnaire prior to returning to work. The medical questionnaire asked questions about whether the doctor believed that the teacher could maintain reasonable, regular and consistent attendance, and was therefore relevant in determining the teacher’s prognosis of returning to work and whether accommodation was required. However, the teacher refused on the basis that he believed he had already provided sufficient information and that the additional questionnaire was a breach of his privacy.

The arbitrator held that the employer was justified in seeking more information about the employee’s health to determine whether he could maintain regular and reliable attendance in the future but was not justified in keeping the teacher off work while waiting for such information.

The takeaway from this case is that where attendance is a continuing issue, employers are entitled to seek answers for the absences, even where an initial doctor's note has been provided.   

It is important to note that the above set out general principles and that what information is, or is not, reasonable will change depending on each circumstance. Further, request for health information becomes increasingly nuanced in circumstances involving accommodation.

In general, where an employee requests an accommodation plan due to a temporary or permanent disability, the employer’s right of inquiry into the employee’s medical information broadens, but it is not limitless.  In the accommodation realm, the employer is entitled to not only seek medical information that establishes that the employee is in fact a person with a disability, but is also entitled to seek information that would inform the employer of the employee’s restrictions in order to design and achieve accommodation. It is important to remember that employees also have a duty to provide any relevant information that may assist the employer in the assessment of the accommodation request, including any medical reports, on an ongoing basis.

Employees seeking accommodation are still entitled to privacy rights and, although there is a wider sphere of inquiry granted to the employer, the employer is entitled only to the specific information required to make its determinations as to appropriate accommodation. For example, if the injury concerns an injury to the employee’s back, the employer would not be entitled to inquire into the employee’s psychiatric or sexual history.

Additionally, the medical information gathered must be protected and only disclosed for the purpose for which it was obtained; to facilitate the accommodation. For example, a supervisor may need to know that the employee has an accommodation but does not need to know why that accommodation is in place. So if an employee has a limitation that they cannot lift items above a certain weight due to a back injury, the employee’s supervisor may be informed that the employee cannot lift heavy items, but not that the employee has a back injury.  

Given the fact-specific and nuanced nature of requesting medical information, policies and procedures around medical leave should be reviewed by a legal professional to ensure that the request for information is appropriate and the privacy rights of employees are upheld.

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