Just What the Doctor Ordered: When Engaged in the Duty to Accommodate, Employers Have an Expanded Right to Request an Independent Medical Exam
In the workplace, employers often want or (in some cases) need certain medical documentation when attempting to determine how to best accommodate an employee with a disability.
Normally, the information provided by an employee’s attending physician will be sufficient to allow an employer to fully discharge their duty to accommodate an employee with a disability under the Ontario Human Rights Code. However, the Ontario Court of Appeal has widened the scope of an employer’s rights to request an independent medical examination (IME) be done by an additional doctor, in certain circumstances, while engaged in the accommodation process. In recently declining to reconsider a decision made by the Human Rights Tribunal of Ontario, affirmed at the Divisional Court, the Appeal Court confirmed the decision of the lower court and Tribunal.
In Bottiglia v. Ottawa Catholic School Board, the employer was requesting the IME in order to determine how to accommodate the disability of a superintendent of the Ottawa Catholic School Board (OCSB) upon his proposed return to work after two years on paid leave.
In reviewing the Tribunal’s reasons, the Divisional Court found that
an employer is only entitled to request that an employee undergo an IME where the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate.
There were multiple circumstances in Bottiglia which gave rise to the Tribunal’s finding that the OCSB could not reasonably expect to obtain the necessary information to fulfill their duty.
In Bottiglia, the Tribunal found these circumstances included what the court determined to be a sudden “about-face” made by the attending physician within a span of approximately five months regarding the employee’s ability to work, the coinciding of this event with the end of Mr. Bottiglia’s paid sick leave period, and the vague and uninformed nature of the return to work plan provided to the OSCB by Mr. Bottiglia’s physician.
After considering evidence offered by Mr. Bottiglia and his doctor, both the Tribunal and the Court found it reasonable that the employer would want further information about the employee’s medical condition, prognosis, restrictions and potential accommodations given the significant an unexpected changes in the employee’s ability to return to work as stated by his doctor.
Without limiting the circumstances to those found in this case, the Court stated that, generally, where the employer had a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert, an IME request would be proper.
While the employer may have the right to request an IME, this not an unrestricted free pass. In requesting information, employers must respect as much as possible the employee’s right to privacy and balance that with the need to obtain accurate information needed to facilitate accommodation.
It should be noted that the scope of the IME is restricted to information required to determine the degree to which the employee requires accommodation. In addition, where an employer has provided information to an examiner which might reasonably be expected to impair that examiner’s objectivity, the employee may be justified in refusing to attend the IME.
If you have been asked by an employer to participate in an IME, or are contemplating requesting an employee participate in an IME, one of our experienced employment lawyers would be happy to assist you.
Employment Law and Litigation