As discussed in a previous post, disability-related accommodation requests can be a challenge in terms of balancing the employer’s right to medical information about the employee with the employee’s own right to privacy.
Employers are entitled to request medical information in order to determine the appropriate accommodation for employees. However, there may be situations in which the information provided by an employee’s treating physician appears to be inaccurate or inadequate. In such cases an employer can request further information or clarification, but when can they specifically ask for an Independent Medical Examination (i.e. an assessment from a doctor or specialist who has not previously been involved with the employee)?
Judicial guidance on this topic is limited, but the Ontario Human Rights Tribunal decision in Bottiglia v Ottawa Catholic School Board (“Bottiglia”) is helpful. The overarching question to consider is whether, taking into consideration all circumstances of the case, the employer’s request for an Independent Medical Examination (“IME”) is reasonable. Let’s examine the case to see what this means.
In Bottiglia, the employee was a superintendent at a school board who went on a 2-year medical leave. As he prepared to return to work, the employer asked him to undergo an IME as a pre-condition for his return. The employee rejected the request on the basis that the medical opinion which his treating physician had initially provided contained sufficient information about his accommodation needs upon his return. The employer disagreed, arguing that the medical documents provided by the employee were deficient and that it needed an IME to determine appropriate accommodations.
The HRTO found that the employer’s request for an IME was justified for several reasons. First, the accommodation plan proposed by the employee’s physician was unusually onerous. For example, it proposed a 6-12 month transition period for the employee when the norm for other similarly situated employees had been 6-8 weeks. Second, the plan did not provide adequate reasons for the unusual recommended accommodations. Third, there were significant and unexpected changes in the employee’s stated ability to return over a short time frame. The employee had submitted multiple return to work dates. Fourth, the accommodation plan failed to address the unique characteristics of the employee’s position and duties. In fact, the physician admitted under cross-examination that he had made boilerplate recommendations for the employee’s accommodation needs.
In addition, the HRTO held that the employer had reason to question whether the employee’s return to work plan was premature given the onerous accommodations requested, and the fact that the proposed return to work date, after the employee had been absent for over two years, coincided with the expiry of the employee’s paid leave.
In light of these many deficiencies taken together, the HRTO held that the employer “had a reasonable and bona fide reason to question the adequacy and reliability of the information the applicant provided and the legitimacy of the applicant’s proposed accommodation and to consequently seek an independent medical assessment.”
– Employers should request an IME only in exceptional circumstances. Generally, where an employer is provided inadequate medical information in relation to an accommodation request, it should pursue less intrusive methods for obtaining the needed information, such as requesting further information or clarification from the provider of the employee’s medical information.
-However, an IME may be warranted in certain cases. The overarching question to consider is whether, in all circumstances of the case, the employer’s request for an IME is reasonable.
-To establish that the request is “reasonable”, the employer should demonstrate that (1) the medical information provided by the employee is inaccurate, inadequate or unreliable; and (2) information to be obtained from an IME is necessary in order to determine the appropriate accommodation for the employee.
-Some indicators of inaccurate, inadequate or unreliable medical information include: (1) recommendation of unusually onerous accommodations without explanation or supporting reasons; and (2) boilerplate recommendations about accommodation of the employee which are not specifically tailored to his or her disability or job duties.
– An employer may also be entitled to an IME where it has a bona fide reason to question whether an employee on disability leave is truly ready to return to work. This may occur, for example, where the employee seeks unusually onerous accommodation and where the proposed return to work date coincides with the expiry of his or her paid leave.
– As a best practice, an IME should be conducted by a physician that is agreeable to both the employer and the employee.
– Employees are expected to meaningfully engage in the accommodation process and provide employers with a reasonable amount of information that will allow employers to assess accommodation options. However, a failure to provide accurate and needed medical information may lead to an Independent Medical Examination.