By AdvocateDaily.com Staff
Guidelines recently updated by the Ontario Human Rights Commission should clarify what medical documentation is required to accommodate disabilities, says Toronto employment lawyer Doug MacLeod.
“The guidelines are a pretty good framework for what employers can ask for and what employees should be providing,” says MacLeod, principal of MacLeod Law Firm.
“There are many employers who have never been faced with a request for accommodation, so they’re not sure how to respond. Their knee-jerk reaction may be to ask. ‘What’s your disability?’ And that’s improper. You can’t ask for an employee’s diagnosis. That’s a common mistake,” he tells AdvocateDaily.com.
Employers often rely on the expertise of medical professionals as they attempt to fulfill their legal duty to accommodate employees with disabilities. The rules governing what information employers can request were updated in September 2016, when the Ontario Human Rights Commission (OHRC) updated its Policy on ableism and discrimination based on disability.
Section 8.7 outlines the type and scope of medical information to be provided to support an accommodation request. According to the policy, this information should include:
- that the person has a disability;
- the limitations or needs associated with the disability;
- whether the person can perform the essential duties or requirements of the job, of being a tenant, or of being a service user, with or without accommodation;
- the type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job, of being a tenant, or of being a service user, etc.; and,
- in employment, regular updates about when the person expects to come back to work, if they are on leave.
The OHRC says it released the new guidelines in response to “some confusion about the type and scope of medical information that needs to be provided to support an accommodation request. In some cases, people with disabilities have been unable to gain equal access to services or employment because of ambiguous or vague medical notes that do not provide enough information to allow for appropriate accommodations to be meaningfully implemented.
“There are also situations where employers and others have requested personal medical information that goes beyond what is required to support an accommodation request. Overbroad requests for private medical information — such as diagnostic information — undermine the dignity and privacy of people with disabilities.”
MacLeod says it’s important for employers to remember that they can ask about functional limitations associated with the disability, but they should not ask directly about a person’s diagnosis.
“The problem is the rules are changing. The scope of the duty to accommodate has expanded quite a bit recently, so it’s not just about figuring out if someone can do the essential job duties,” he says. “For instance, can a person still perform the duties of a truck driver after being injured? That’s not the end of the story anymore. The question now is: if they cannot do the essential job duties of a truck driver, is there any other position that they can do? And that opens up a whole other can of worms.”
The issue could mushroom depending on how these more recent cases are interpreted in smaller workplaces, he says. For example, if an employee is one of 10,000 with a generic skill set, and there are hundreds of vacancies that come open in the course of the year, it’s probably not too difficult to find another job for that person, says MacLeod.
“But what if you have an employer of six people and somebody becomes disabled?” he asks. “There may be a vacancy, and while the disabled person may have the basic qualifications, they’re not even close to being the best person for the job. That’s going to have a much bigger impact on a small workplace than in the first case.”
Between those two extreme cases, MacLeod wonders where the courts will settle and say there isn’t a need to expand into other jobs.