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Duty of Accommodation – Independent Medical Examination

notaryYou have requested modifications to your job duties as a result of an injury or illness. You have provided information to your employer regarding your need for modified duties, including a letter from your doctor, indicating that modifications are required. Your employer has now requested that you attend an independent medical examination, to be conducted by a doctor of their choice.

The first question that any employee would likely ask if faced with this situation is likely: does my employer have the right to do this?

The answer, according to a recent ruling of the Ontario Court of Appeal is, in certain situations, yes.

In August of 2017, the Court of Appeal released its endorsement on a motion for leave to appeal a decision of the Divisional Court. The decision sought to be appealed was a decision by the Divisional Court, upholding the finding of the Human Rights Tribunal of Ontario (“HRTO”) that in certain situations, an employee may be required to submit to a medical examination, by a doctor selected by their employer, as part of the process of accommodating the employee and returning the employee to work.

Background

The decision at issue is that of the Human Rights Tribunal in Bottiglia v. Ottawa Catholic School Board. In this case, the Applicant, Mr. Bottiglia, had been off work as a result of an illness. In September of 2012, his doctor provided a letter to his employer indicating that Mr. Bottiglia was able to return to work, and outlining his recommended return to work plan. The employer, however, refused to allow Mr. Bottiglia to return to work unless he attended an Independent Medical Examination (“IME”) in order to confirm his ability to return to work and to determine if the accommodations proposed by his doctor were in fact necessary.

Mr. Bottiglia ultimately refused to attend the IME and as a result was not permitted to return to work. He subsequently commenced an Application in the HRTO.

The Application was dismissed by the HRTO, in part because of Mr. Bottiglia’s refusal to attend the IME. In coming to this conclusion, the HRTO found that the request for the IME was reasonable in the circumstances. In arriving at this conclusion, the HRTO considered the fact that Mr. Bottiglia had been off work for almost 2 years, that he communicated to his employer that he was unable to return to work and that recovery would take a long period of time and then a few months later he advised that he would be able to return to work on a limited basis within the next two months. The HRTO found that given the significant and unexpected changes in Mr. Bottiglia’s stated ability to return to work, that it was reasonable for his employer to request further information.

The HRTO also found it reasonable for the employer to question whether the proposed return to work plan was adequate or appropriate or possibly premature given the nature of the accommodation proposed. The HRTO also found it reasonable that the employer was concerned that the return to work date coincided with the end of Mr. Bottiglia’s paid leave.

Ultimately the HRTO found that the employer had “sufficient reason to question the adequacy and reliability of the information that had been provided about the applicant’s condition, needed accommodations and ability to return to work.”

Mr. Bottiglia brought an Application for Judicial Review of the HRTO decision to the Divisional Court. The Divisional Court dismissed the Application, saying that the finding that the employer was justified in requesting an IME in the circumstances was reasonable. By declining to hear a further appeal, the Court of Appeal has essentially confirmed the Divisional Court’s decision.

What does it all mean?

Under the Human Rights Code, an employer has an obligation not to discriminate against an employee because of his or her disability. If an employee has disability related needs, the employer has a duty to determine what accommodations the employee might require. There are two parts to this duty; a procedural and a substantive part. Under the procedural component, the employer is required to obtain all relevant information about the employee’s disability, including information about the employee’s current medical condition, the prognosis for recovery, ability to perform job duties and capabilities for alternate work. The substantive component requires the employer to make modifications or provide the accommodations necessary, short of undue hardship.

While the employer does have a duty to accommodate the employee, this duty is not one-sided. There are obligations placed on the employee as well. An employee who is seeking accommodation has a duty to co-operate with the process by providing his or her employer with a reasonable amount of information about their restrictions and disability related needs. This is so the employer can assess whether and how the employee’s needs can be accommodated without undue hardship.

In this case, what the HRTO and the courts are saying is that there may be situations where the employer is justified in requesting that the employee attend an IME at the employer’s insistence. These types of situations may be where the employee’s doctor has not provided enough information to allow the employer to fully assess the employee’s needs and the employer’s ability to accommodate those needs, or where there is a reason to believe that the employee’s doctor is advocating on their behalf.

While this decision has certainly left the door open for an employer initiated IME, it does not necessarily mean that an employer will always be justified in requesting an IME. Ultimately, the Tribunal and the Courts have to balance the employee’s right to privacy with regard to medical information with the employer’s duty to accommodate.

What should I do if I find myself in this situation?

Whether you are an employee requesting accommodation or an employer handling an accommodation request, you should seek legal advice for navigating the process. The accommodation process can be difficult and making a mistake during the process could negatively impact you in the future. Our experienced employment lawyers can assist you with the accommodation process and help to ensure that the process is completed in accordance with the requirements of the Code.

Blog post was written by Associate Lawyer Brent Harasym.

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