In a policy statement released early last month, the Ontario Human Rights Commission (the “Commission”) clarified its position on the scope of medical documentation that employees need to provide when making disability-related accommodation requests to their employers. The policy statement supplements the existing Policy on Ableism and Discrimination Based on Disability, and reminds employers that under the Ontario Human Rights Code (the “Code”), they have a legal duty to accommodate to the point of undue hardship. It is important to remember that although the policies issued by the Commission are not law, they can have a persuasive effect on courts. In fact, these policies are given great deference by the courts and are often quoted in their decisions.
This policy statement serves as a reminder to all employers that in order to support an accommodation request, employees will generally be expected to produce medical documentation that includes:
- confirmation that the employee has a disability;
- the limitations or needs associated with the disability;
- whether the employee can perform the essential duties or requirements of the job, with or without accommodation;
- the type of accommodation that may be needed to allow the employee to fulfil the essential duties or requirements of their employment; and
- regular updates about when the employee expects to return to work, if on leave.
In its policy statement, the Commission noted that there have been situations where employers have requested personal medical information that goes beyond what is required to support an accommodation request. The Commission confirmed that overbroad requests for private medical information, such as diagnostic information, undermine the dignity and privacy of people with disabilities. The information requested by an employer must be the least intrusive of the employee’s privacy, while still providing enough information to make an informed decision about the accommodation. Generally, employers do not have a right to know their employee’s confidential medical information, for example the cause of the disability, diagnosis, symptoms or treatment, unless this information clearly relates to the accommodation being sought.
Written with the assistance of Kristina Bezprozvannykh, articling student.