Howard Levitt: Why playing hardball on employee medical information can backfire on companies
Key takeaways for employers wanting to access medical information or request a medical examination
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By Howard Levitt and Rob Lilly
Medical leaves have risen in prominence over the last few years. Employers are increasingly in the unenviable position of accommodating their employees back into the workforce. But it is not simply a matter of providing the employee with an ergonomic chair and greeting her with, “Welcome back, pick up where you left off.” It is a calculated process — often rife with pitfalls — with the goal of ensuring success for both employer and employee.
A recent case brought by a former female employee against TFI International Inc./TFI Transport before the Canadian Industrial Relations Board exemplifies what an employer should not do when an employee requests accommodation after a leave. It also clarifies when an employer can force an employee to attend an independent medical examination (IME). Spoiler alert: it is not that easy.
The woman worked as environmental advisor for eight months at TFI before going on a short-term disability leave for mental health issues. The insurance company discontinued her benefits after six months, claiming she had a pre-existing condition. Instead of disputing the denial, the woman stayed on an unpaid leave for about four months until she was ready to return to work.
The woman gave TFI a note from her psychiatrist prescribing a gradual return to work. Presumably, TFI could have easily accommodated part-time work for the six weeks, especially since the woman would be free and clear to resume full duties afterwards. Instead, it played hardball and it did not end well.
TFI demanded the woman commence full-time work without any work hardening. TFI also obtained her medical records from the disability insurer without the woman’s consent. After the woman asked why TFI dismissed her doctor’s recommendations, TFL upped the ante — insisting she attend a medical examination (IME) with its chosen psychiatrist. The trucking giant went on to accuse the woman of concealing information about her mental health when she interviewed for the position.
The woman apprehensively attended the IME feeling bullied by threats of disciplinary action if she did not.
TFI demanded the woman’s complete psychiatric and psychological records after its psychiatrist determined them necessary to complete his opinion. When she refused, TFI limited its request to four years before she started work, still an overreach. The woman rightfully refused again.
With this refusal, TFI fired the woman for cause alleging she (1) improperly refused access to her medical file, and (2) falsely represented that she was fit for the job when hired.
The woman filed a complaint under the Canada Labour Code for unjust dismissal, a remedy for employees dismissed or constructively dismissed from federally regulated employers. The Canadian Industrial Relations Board concluded that TFI failed to not only establish cause on both grounds, but also failed to accommodate her. Despite having only 22 months of service, the woman received three years of salary (pay up until the date of hearing), plus interest and costs. The Board also awarded $50,000.00 in punitive damages to punish TFI for its privacy breach, insistence on an IME and failure to accommodate.
The case provides key takeaways for employers wanting to access medical information or request an IME:
1. Don’t obtain an employee’s file from a disability insurer unless the employee has provided valid and current consent to the insurer or the employer.
2. If additional medical information is required to assess an employee’s need for accommodation or ability to return to work, explain what is missing from the information provided and why that information is “reasonably necessary.” Seek that information directly from the employee or the employee’s treating physician.
3. Employers do not have an automatic right to request an IME. In ruling that TFI improperly subjected the woman to an IME, the Board distilled the following principles from Canadian caselaw that apply to an employer’s request for an IME:
- “In the absence of a contractual or statutory right, an IME is only permitted in exceptional and rare circumstances;”
- “Prior to requiring an IME, an employer has a duty to explain why a medical certificate is insufficient and to explore other options for obtaining the necessary medical information;”
- “An employer must have reasonable and probable grounds that the employee is unfit or that the return to work would be unsafe for the employee or others;”
- “An employer must not impair the objectivity of the examiner through the information provided;” and
- “The IME cannot proceed without the employee’s consent, except in circumstances where the IME is prescribed by legislation, a collective agreement or other contract.”
Unreasonable demands for personal medical information proved costly. Had TFI agreed to the woman’s proposed re-entry schedule it could have avoided a judgment of well over $300,000. Employers in all sectors faced with employees returning from medical leaves would be wise to review the Board’s guidelines in this case when considering if they truly require more medication information or an IME.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Rob Lilly is with Levitt Sheikh.
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