Employer Requests for Medical Information: When are they allowed, and how much information can be requested?
By: Alison Moore, BC Human Rights Clinic Staff Lawyer
Receiving a request for medical documents from one’s employer can be stressful. Employees may be understandably concerned about providing private medical information to their employer. This article discusses when an employer may request medical information from an employee, and the amount of information an employee is required to provide. This article also discusses when an employer may request an Independent Medical Examination.
When can an employer request medical information from an employee?
In general, employees have no obligation to share information about their health or medical conditions with their employer. However, there are two broad circumstances in which an employer may be justified in requesting medical information from an employee: accommodation requests, and situations where an employee’s disability may be negatively impacting the workplace. In these situations, an employee must provide their employer with the required information, or they may face consequences that could include the termination of their employment.
Where an employee is seeking accommodation for a disability, an employer may request medical documentation to verify the disability-related need for accommodation, and to learn what the employee’s disability-related needs and limitations are. The purpose of the request should be to help the employer accommodate the employee’s disability-related needs. An employee has a duty to cooperate with this type of request.
The second circumstance where an employer may be justified in seeking medical documentation from an employee is where an employer has a valid concern that an employee’s disability is negatively affecting them at work. This situation usually arises with respect to safety or performance.[1] Requests like this are part of an employer’s duty to inquire about a medical condition that may be affecting an employee’s performance.
Where an employer knows or ought to know that an employee has a disability that may be negatively affecting them at work, the employer must gather information about the disability before taking steps that would negatively affect the employee, like disciplining or terminating them.[2] Even if the employee does not agree that their ability to do their job is affected by a disability, the employee is obligated to comply with reasonable requests for medical information from their employer. [3]
For example, in Broe v. Board of Education of School District No. 67 (Okanagan Skaha) and another, 2023 BCHRT 157 an employer received complaints from the complainant’s colleagues about her behaviour at work. The employer investigated the complaints and found that some of them were legitimate. The employer sent the complainant a “Fitness to Work Assessment” for her doctor to complete and placed her on leave pending receipt of the completed Assessment.
The Assessment included a description of the complainant’s behaviour that the employer said raised concerns about the complainant’s ability to safely perform her duties. The Assessment also included questions regarding whether the complainant was diagnosed with any medical conditions, whether any treatments were underway or recommended, and whether or to what extent such condition(s) may impact her ability to perform her duties. The complainant did not agree that the Assessment was necessary and refused to provide a doctor’s response. Her employer did not allow her to return to work. The Tribunal found that the employer had a valid reason to request the Assessment and place the complainant on leave pending receipt of that information. The employer’s conduct was reasonable and consistent with its duty to inquire. The complaint was dismissed.
What is a reasonable request for medical information, and how much information is an employer entitled to?
The Tribunal has consistently recognized that an employer does not have an unlimited right to inquire into an employee’s medical condition.[4] When an employer seeks medical information from an employee, there should be a reason for the request. Also, an employer should not request more medical information than is required in the circumstances. A request for medical information without a legitimate reason is overly intrusive and may itself constitute discrimination.[5]
For example, in Braun v. Avcorp Industries Inc., 2023 BCHRT 167, the complainant was Deaf and had worked for his employer for several years. The employer was aware that the complainant was Deaf. The complainant was exhausted by having to lip-read at work and began requesting ASL interpreters to assist him. His employer gave him a “Request for Medical Information” form to set out the nature of his medical condition, limitations, and required accommodations. On an application to dismiss the complaint, the Tribunal found that the employer’s request may not have been reasonable or necessary in the circumstances, as there was no question that the complainant was Deaf and needed ASL interpreters. The doctor’s information did not add anything to what the complainant was already communicating about his needs. The Tribunal found that it could conclude at a hearing that the request for medical information negatively affected the complainant by delaying his accommodation and making him put time and effort into something unhelpful.
The amount of medical information that an employee must provide to their employer depends on what information is required for the employer to understand the employee’s disability-related needs. In general, an employer is entitled to information about an employee’s disability-related needs and ability to perform their job duties. This can include asking whether an employee has any “limitations or restrictions” on their ability to perform their job duties. Limitations and restrictions could include things like being unable to tolerate bright or noisy environments, having to start and finish work at altered times, being unable to lift a certain amount of weight, or being unable tolerate standing or sitting for more than a specific period.
Where an employee is unable to do all their job duties due to a disability, or where an employee is on leave from work due to a disability, an employer is also entitled to information regarding the employee’s prognosis, including when they are expected to recover and to what extent.
When can an employer require an employee to submit to an Independent Medical Evaluation?
Employers sometimes request that an employee be assessed by a third-party medical professional. This type of assessment is often called an Independent Medical Evaluation, or “IME.” The Tribunal has found that “[r]equiring an employee to submit to an assessment with a health care provider chosen by the employer can only be justified as a last resort.”[6]
In Ciliberto v. Tree Island Industries Ltd., 2024 BCHRT 87, the complainant, a long-term employee, went on medical leave after suffering a disabling injury. The employer regularly inquired with the complainant’s doctor about his condition and prognosis. The information provided by the doctor regarding the complainant’s prognosis was vague and inconsistent; it was unclear whether he would be able to return to work in the foreseeable future. About three years into the complainant’s medical leave, the employer requested that he consent to an IME. The employee refused to consent to the IME and was terminated.
The Tribunal found that the evidence indicated that the employer proposed the IME as a last resort, after making several attempts to obtain clarifying information from the complainant’s doctor regarding his prospect for returning to work. The Tribunal found that, in the circumstances, the employer’s requests for information from the employee were not overly intrusive, unreasonable, or discriminatory.[7] Therefore, the Tribunal found that the employee’s termination was justified; the employer had reached the point of undue hardship.
Conclusion
To avoid discriminating against an employee, an employer making a request for medical information should ensure that the request is necessary to allow the employer to understand the employee’s disability-related needs, ability to perform job duties, ability to do alternate work, or prognosis for recovery. The purpose of the request should be to support the employer’s efforts to accommodate the employee, which is key to ensuring that disabled employees are not unfairly excluded and are able to succeed at work. Reasonable requests for medical information “made sensitively and in good faith…do not violate the Code but rather further its purpose of preventing and eradicating discrimination.”[8]
[1] Tuson v. The Board of Education of School District No. 5 (No. 4), 2020 BCHRT 195 at para 166.
[2] Gardiner v. BC (Attorney General), 2003 BCHRT 41 at para 175.
[3] Petrar v. Thompson Rivers University and another, 2014 BCHRT 193, at para 105.
[4] Thorburn v. Vancouver Coastal Health Authority, 2013 BCHRT 260 at para 24.
[5] Gichuru v. Law Society of BC, 2009 BCHRT 360, at paras 560 and 565.
[6] Pattinson v. University of Northern British Columbia and another (No. 2), 2024 BCHRT 110 at para 73.
[7] At para 52.
[8] Tuson, at para 168, citing Petrar, at para 109.