Canadian HR Reporter

CANADIAN HR REPORTER June 1, 2015 NEWS 11 accommodate under human rights legislation." Both employers and employees have obligations under the duty to accommodate. e employer has to take steps to accommodate any restrictions a disabled employee might have and, in order to do that properly, the employee has an obligation to provide the em- ployer with sufficient medical in- formation to allow the employer to make that assessment, said Nieuwland. "at doesn't mean an employ- er can open the kimono and get all of your deep, dark medical secrets — that's not the case at all. But an employer is entitled to ask for rel- evant medical information so that they can do the assessment. And the debate always comes down to 'What is relevant?' And there are no general rules there because 'relevant' is driven by facts and each person's circumstances are different," he said. However, employers can run into legal trouble if they are unrea- sonably intrusive in the requests for information, said Vincent Johnston, a partner at Harris & Company in Vancouver. "Employers have to remember that the greater the degree of in- trusiveness of the request, the greater the legitimate justification they will have to show," he said. For example, an employer may overreach if it asks an employee — who has a clean attendance record — for a detailed medical explana- tion after a two- or three-day ab- sence, said Johnston. "(Sending) a letter to them say- ing, 'We require the following information including the nature of your illness, any restrictions, what's the prognosis, et cetera,' I would think in that scenario, an adjudicator would likely say, 'at is more than you need, given all of the circumstances,'" he said. "Another situation in which employers often overreach is they ask for a diagnosis of the em- ployee's medical condition. And, generally speaking, information relating to a diagnosis is not infor- mation that should be disclosed to an employer." Accommodating employees When it comes to accommo- dating employees and working around any restrictions they have, the information doctor's notes can provide is pivotal, said Curtis. Under occupational health and safety law, the employer needs to take into consideration the safety of the worksite both for the em- ployee himself and also for his co- workers. But that doesn't give the employer carte blanche to ask for the employee's entire medical file, including the diagnosis or private details, he said. "e focus should be on restric- tions, medical limitations and ability to perform the job duties and responsibilities." However, some physicians can find it challenging to provide the level of detail employers may de- sire, particularly when they're unfamiliar with the patient's line of work or working environment, said Chapman. "One of the challenges we hear from physicians a lot with that is 'I don't know your work environ- ment so I don't know what you can or can't do,'" he said. "e physician might have a general insight into what the work might be like, but really doesn't have a lot of really keen insight to say, 'Well, this individual could do x, y and z.' And, oftentimes, you rely on the patient, who is re- ally your only conduit back to the workplace, to talk about what the intensity of the work might be." is can be even more chal- lenging if it is an anxiety-related illness or mental health illness, said Chapman. "Looking for that sort of 'sick note plus' kind of thing on what the individual can do is quite challenging and oftentimes puts physicians in a place of obviously wanting to represent their pa- tients and support their patients, but reaching in the dark… often- times, it relies on conversations with the patient to say (what they can and can't do)." When to ask for a sick note? Employers also need to consider when to ask for a sick note in the first place, which will largely de- pend on how long the employee has been absent, said Curtis. "A natural temptation may be to require a doctor's note very early on but that may be unneces- sary and a court may find that it's unreasonable to require a lengthy doctor's note for a short period of absence," he said. "On the flip side, I think em- ployers can be a little bit too reluc- tant these days… sometimes they let the matter go on too long with- out requesting either employee medical information or updated employee medical information." For the most part, physician as- sociations haven't mandated when notes should be necessary, said Chapman — but Doctors Nova Scotia and the Ontario Medi- cal Association have come out strongly against requiring notes for short, infrequent absences. "I don't know that we've neces- sarily identified a sort of line in the sand — three days or five days or whatever the case may be," he said. "The overarching thing for us has been when an individual comes in for a sick note, which is ostensibly an administrative exer- cise because it's mandated by their employer, it puts a burden on the system to satisfy what for us is an administrative requirement. And it strikes us that we're better served if challenging sick time is dealt with in other ways. "at would be something like, someone who takes every Friday off after payday, dealing with it from the perspective of the indi- vidual worker rather than blanket policies that say, 'If you're sick be- yond three days, in order to return to work, you must get a sick note.'" Some firms — such as the To- ronto Transit Commission (TTC) — require a sick note after every absence. But, as a matter of prac- tice, most employers don't ask for notes for illnesses that last less than three days because it becomes difficult for people take one or two days off to get a doc- tor's note, said Nieuwland. "After three days then, as a mat- ter of course, you ask for a doctor's note. Less than that, you don't — unless you have a reasonable basis to (suspect) someone is malinger- ing," he said. "e only time I recommend that you go for notes on short absences is (with) malingering suspicions. But there's got to be a reasonable basis." Physicians find it challenging to provide details HR < pg. 1 Physician associations haven't really mandated when notes are necessary.

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