September 26th, 2018
In Ontario, an employer has a duty to accommodate the employee to the point of undue hardship and this obligation may mean that the employer will require further medical information to determine what the employer needs to do in order to accommodate the employee. But, there are limits on what an employer can require of its employees claiming a need for a medical leave. For example, in most instances, an employer is not entitled to a diagnosis. But an employer is entitled to know enough to make some assessment of the bona fides of the leave request and sufficient information to determine what if any accommodations might be made to return their employee to the workplace, and if that is not possible, some estimate of how long the employee is expected to be absent (Cristiano v. Grand National Apparel Inc. 2012 HRTO 991, at para. 20).
Consider the holding in Cristiano v. Grand National Apparel Inc. In that case, an employee brought an application to the Human Rights Tribunal that she was harassed in the workplace. The alleged harassment took the form of persistent demands for information regarding Ms. Cristiano’s disability before the employer ultimately terminated her. The applicant was terminated from her employment with the respondent employer following or during a medical leave of absence from work. The dispute between the parties centred on the request of the respondent employer for additional information related to the medical leave of absence.
In one letter to the applicant, the employer requested the following information:
1) whether it is the employee’s physician's opinion that she is totally disabled from performing the duties of her occupation at the relevant time to the claim;
2) if she was not totally disabled, then what limitations, if any, are there on her ability to perform her duties;
3) the date her disability (if any) commenced; and
4) her prognosis for recovery and, particularly, an estimated date on which the employee will be able to return to work on a regular basis, both with and without limitations.
The respondent characterized their request as bona fide and necessary so that it could plan for the leave of absence. Whereas, the applicant characterised the repeated requests made by the employer as harassment as defined in the Code. Upon her return from the medical leave of absence the applicant was terminated for reasons found in another proceeding to be unrelated to her medical issues.
The Tribunal ultimately sided with the employer. It held that the request for information was not unreasonable and accordingly could not reasonably have been seen as unwelcome. The information was reasonably required in order for the employer to discharge its duty to the employee.
The takeaway for employers and employees is that if the employee does not answer reasonable requests for necessary information, then it may be possible to claim that the employee is on an unauthorized leave of absence. There is one hitch, however, one that could not have been anticipated by the Human Rights Tribunal in its decision in Cristiano. Recently, the Ontario government passed Bill 148 and made dramatic changes to the Employment Standards Act. One of those changes was to prohibit employers from requesting a doctor’s note from persons on a personal emergency leave (i.e. sick days). The personal emergency leave can be taken for up to ten days (two of which must be paid). Given the foregoing, while an employer is entitled to have as much information as is reasonably required to discharge its duty to accommodate the employee, it should be careful not to request a doctor’s note within the personal emergency leave period as it would be a violation of the Employment Standards Act.
At Lerners, we provide advice to employees and employers facing the balancing act of requests for medical information and encourage people facing this balancing act to seek out legal advice specific to their situation.