When it comes to requesting medical information from employees, HR needs to tread carefully. Walking the line between respecting the worker’s privacy and obtaining the needed documentation is tough; but there are certain guidelines that, if followed, should make the experience less harrowing.
We spoke to Ryan Anderson, partner at Mathews, Dinsdale & Clark, who gave us his thoughts on the issue.
“Medical information of any kind is amongst the most private of information,” explained Anderson. “So that means at every decision-making point you’re constantly engaged in a balancing process – balancing the employee’s privacy rights with the employer’s need to obtain medical information.
“In many circumstances, an employer has a right to obtain the information – in fact an employer may even have a duty to enquire. In some circumstance an employer’s right to obtain medical information is driven by the employer’s a legal duty, the most common of which is the duty to accommodate. This means that if an employee comes to their employer and expresses an inability to do their job, perhaps indicating a disability, the employer has a legal obligation to consider potential accommodations to help the worker stay in the job – up until the point of undue hardship.
“The only way for the employer to do that properly is to have necessary medical information. You cannot complete an assessment of the workplace, looking into what types of accommodation may need to be made, without information from the employee’s doctor regarding the employee’s medical state.”
So, when can employers legally ask for medical information? Anderson told us there are five broad instances in which employers may have the right to obtain medical information; we’ve listed them below.
Accommodation: This is where an employee says they cannot do their job due to medical reasons. The employer then has to get medical information to see what sorts of accommodations they can make either in the workplace or in regards to the employee’s role.
Performance management: If an employee is not specifically requesting that information, but is explaining away their behaviour or substandard performance with a medical condition, then the employer is permitted to ask for medical information.
Absenteeism management: If an employee has been absence a lot from work, or they’re exhibiting a suspicious pattern of absences, the employer should maintain absenteeism management and ask for medical information.
Return after an absence: If an employee is absent for a particularly long period of time, and then claims they are ready and able to return to work – the employer is within their rights to ask for medical information to back this up.
Fit to continue: If an employee is at work and begin displaying strange behaviour, an employer can ask for medical information to assess if they are fit to continue to stay in work.
Ryan Anderson will be speaking on these issues and much more at our upcoming HRD Cana Employment Law Masterclass, in Vancouver on March 15th. Find out more about the exciting speaker line up and agenda here.
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