Union of B.C. Municipalities 2016 Group Benefits Conference. Practical Tips in Obtaining Medical Information. Presented by: Andrew Schafer

Transcription

1 Union of B.C. Municipalities 2016 Group Benefits Conference Practical Tips in Obtaining Medical Information Presented by: Andrew Schafer

2 Background > What is a disability? > Duty to inquire When can employers ask for information? Accessible and inaccessible information What to ask physicians sample questions Topics today Requesting further information/getting second opinions Protecting medical information

3 BCHRT Annual Report , or 65% of all complaints received, were in relation to discrimination in employment 623, or 46% of all complaints received, cited physical (27%) or mental disability (18%) as the protected ground

4 BC Human Rights Code does not define disability BC Human Rights Tribunal adopts a broad interpretation What is a disability?

5 What is a disability? Mental disabilities can include: > Bipolar disorder > Depression > Post-traumatic stress disorder > Panic disorder > Addiction > Severe learning disorder > Mental/intellectual deficiency > Anxiety, but not stress without something more

6 Mental disabilities and addictions Employees with these disabilities may not be forthcoming with information: > Employees with mental illnesses may not be aware of illness > Employees with addictions may not have come to terms with it or may deny it

7 Duty to Inquire The employer s obligation to accommodate may include positive duty to request medical information where employer has constructive knowledge of the need to accommodate

8 Red flags: > Prolonged absences > Changes in mood/appearance > Withdrawing socially > Expressions of hopelessness or distress > Symptoms of exhaustion > Deterioration in quality of work > Learning that employee has been hospitalized or is in counselling Duty to Inquire

9 Considerations in obtaining medical information Fraught with issues relating to privacy, human rights, and workplace safety Many interests at play to be balanced > Maintaining a healthy and safe workplace > Complying with human rights, workers compensation and privacy legislation

10 Right to ask for medical information Employers have legitimate right to request medical information in certain circumstances: > To substantiate a request for sick leave > To determine employee s fitness to return to work after absence > To assess and consider what accommodations are necessary for the employee

11 Initial considerations Consider what kind of medical information is accessible and what kind of information is inaccessible > What has already been agreed to? > Check your employment policies and any collective agreements > Individual circumstances > Take into account privacy considerations and individual circumstances

12 Accessible information Information that is generally accessible > Nature of illness or disability (e.g. recurring or chronic) > Prognosis, expected date of return and expected duration of absence > Functional capabilities and limitations > Whether treatment has been prescribed and followed > Fitness to return to work

13 Inaccessible information Information that is generally inaccessible > The employee s diagnosis > The kind of treatment > Independent Medical Exams (IMEs) > Direct contact with the employee s doctor > Medical records or reports from the employee s doctor

14 Requesting initial information Medical information requests should: > Relate to the operation of the workplace and the job duties of the employee > Be relevant to the time period of absence requested > Be proportionate to the length of absence» Short or infrequent absences may only require minimal information

15 Sample questions to ask physicians 1. Does [employee] have a diagnosed medical impairment affecting his/her ability to perform the duties and responsibilities of his/her position as [position]? 2. Without providing a diagnosis, please indicate the nature of the medical impairment and whether it is temporary, permanent or recurrent. 3. Is [employee] presently able to work in his/her full capacity and if so what day can he/she fully return to work?

16 Sample questions to ask physicians 4. If [employee] is unable to work in his/her full capacity, is he/ she able to return to work in some modified capacity and if so, what are his/her current limitations? 5. If temporary work accommodation is required, what are the specific work limitations and restrictions required? 6. How long is this temporary modified return to work required for? 7. Are there measures the employer can take to reduce the duration of time off for [employee] and if so what are they?

17 Sample questions to ask physicians 8. If [employee s] ability to perform the duties of his/her position is currently in some way, has a treatment plan been recommended? 9. If so, is [employee] actively participating in the plan? 10. When is [employee s] expected full time return to work date? 11. If there is no specific date for return to work, will [employee] be able to return to work and perform his/her job duties in the foreseeable future? 12. The any additional information question

18 Requesting further information Consider whether the information already provided is sufficient to assess the employee s situation and if not, why

19 Sufficiency of medical information provided Yue and Bank of Montreal > Employee provided documentation indicating that his eczema and hypertension was aggravated by long commute > Employer denied accommodation based on insufficient information > Employee refuses to provide further information and claims constructive dismissal

20 Sufficiency of medical information provided > Medication documentation provided indicated a preference and not a medical necessity = no requirement to accommodate > It did not establish connection between employee s illness and an inability to travel for long periods Key consideration: Is there adequate information to support the employee s absence due to illness or the need for accommodation?

21 Requesting further information Requests for further information > Inform employee in writing that further information is required and the reason why > Specifically identify the information requested > Keep in mind accessible/inaccessible information > Use the least intrusive method possible to get only the information necessary to assess the circumstances or requests

22 Requesting further information Donaldson v Western Grain By-Products Storage Ltd > Employee leaves industrial workplace feeling ill > Hospitalized for 2 weeks > Tells employer that his doctor says he cannot return to work due to health concerns > Presents a doctor s note after 6 weeks of absence stating [Employee] is now capable of returning to his job & employment at [workplace].

23 Requesting further information > Employer requests a better doctor s note as to his fitness level in relation to his duties and the work environment > Federal Court of Appeal held: Reasonable for employer to request further medical information from the employee upon his return > The two line doctor s note that the [employee] provided did not contain enough information for the respondent to satisfactorily conclude that the [employee] may safely return to work.

24 Requesting further information Dufferin Concrete v Teamsters Local Union Local 230 > Truck driver provided 6 doctor s notes stating requirement to be put on modified hours for medical reasons > Employer asked for further medical information (diagnosis, date of recovery, restrictions, etc.) > Employee did not provide documentation confirming his restrictions for accommodated work and so was not returned to work

25 Requesting further information > Employee filed grievance > Argued employer had violated collective agreement by not allowing him back to work even though he had provided all requested medical information > Employer sought production of all documents from employee s medical file that were arguably relevant to medical conclusions respecting accommodations/ graduated return to work

26 Requesting further information By providing the medical notes to the employer, the union had opened the door to the proper admission of all documentation that doctor relied on in coming to the specific conclusions or recommendations in his medical notes, including: > Information evidencing doctor s knowledge of physical demands of employee > Records of meetings with employee and what was said by him to the doctor on the matter > Clinical notes of physical examinations

27 Refusing to give information If an employee refuses or chooses not to provide medical information to support a request for accommodation, there is no requirement to provide accommodation > Petrar v Thompson Rivers University and another

28 Getting a second opinion/imes IMEs are usually last resort due to employee s strong right to privacy and bodily integrity > Canada (Attorney General) v Grover > Employer cannot order an employee to submit to a medical examination by a doctor chosen by the employer, unless there is some express contractual obligation or statutory authority

29 Federal Court: Getting a second opinion/imes Employers cannot automatically demand an employee undergo a medical examination Must explore other options to obtain the necessary information > Including medical certificate tendered by employee > If insufficient, employer has duty to explain to employee why it is insufficient

30 Getting a second opinion/imes IMEs may be required due to the nature of the work or the employee s medical condition: > If there are serious safety concerns and the information provided by the employee is not sufficient to alleviate those concerns May also be required if the information provided by the employee s doctor is contradictory

31 Getting a second opinion/imes In short, IMEs are only justifiable where there are exceptional and clear circumstances Employers must be prepared to explain reasons for doubting medical certificate Must explore other options short of demanding an IME > E.g. attending a doctor mutually agreed upon by the parties

32 Protecting medical information

33 Protecting medical information Personal Information Protection Act (PIPA) > sets out guidelines on collection, use and disclosure of personal information and employee personal information

34 Employers must: Protecting medical information > Follow PIPA guidelines, especially on retention/destruction > Create privacy officer role > Implement a privacy policy > Keep any information used to make a decision that directly affects the employee for at least one year > Implement physical and electronic security measures (e.g. on retention and destruction) and train employees on procedures > Only release medical information on need-to-know basis for accommodation purposes

35 Questions?

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