By Howard Levitt and Rob Lilly
Key takeaways for employers wanting to access medical information or request a medical examination
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.
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 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.