The Ontario Human Rights Commission (OHRC) has issued an updated Policy on Abelism and discrimination based on disability. The policy became effective in June 2016. While it was introduced with little fanfare, it does introduce some new concepts of human rights of which employers should be aware.
It should be noted that the OHRC’s policies are not binding and do not amend the Human Rights Code, rather the policies represent the OHRC’s interpretation of the Code. However, such policies are often presented to the Human Rights Tribunal by parties as an interpretive tool but they are not definitive of the matter.
Employers frequently need to seek out employee medical information for such things as the administration of attendance management programs, return to work protocols, determining the validity of an employee’s absence or entitlement to benefits, as well as determining accommodation requirements.
The Ontario Human Rights Commission has issued new policy guidelines on the medical documentation to be provided when a disability-related request is made by an employee in section 8.7 of the policy:
- Confirmation of disability.
- Limitations or accommodation needs associated with the disability.
- A statement about whether the employee can perform the essential duties or responsibilities of the job, without or without accommodation.
- The type of accommodation that may be required to allow the employee to perform the essential duties and responsibilities of the job.
- Regular updates from the employees medial provider about when the employee is expected to return to work if the employee is on leave.
The policy guidelines on medical documentation are in keeping with the long-standing case law that an employer is entitled to medical information relative to the fact of the disability, the employee’s medical limitations, if any, and what, if any, accommodation may be required. An employer is not entitled to a diagnosis, but may, in limited circumstances ask for the nature of the disability (ie. physical or mental). Employers may ask for additional medical information as long as there is a reasonable basis for doing so such as a lack of clarity in the information provided by the employee. An employer may also ask for an independent medical examination where additional information is required, provided that the request is reasonable, not used to second guess the need for accommodation and protects the employee’s privacy. Privacy requirements generally interpreted to mean that an employer cannot obtain any more information than is necessary to determine the existence of a disability, the relevant medical limitations and accommodation needs.
What is a Disability”
The policy appears to expand on the definition of disability. The Code includes a specific statutory definition of disability which the case law interpreted to exclude such things as transitory illnesses (ie. colds), and to include perceived disabilities. Whether real or perceived, such disability will trigger the duty to accommodate.
The policy supports this approach and expands on the definition to include future disabilities. According to the OHRC the Code should be interpreted to provide protections to those who may become disabled or may be perceived to become disabled in the future. The interesting question here is whether the Code would extend to situations such as an employee who has a planned surgery. This type of expansion would, in our view, greatly extend the application of the Code if accepted by a Tribunal as law.
An Expanded Duty to Accommodate?
The policy provides that employers must be proactive in identifying accommodation needs and not wait for the employee to identify such requirements. For example, the policy indicates that where an employer observes changes in behavior or performance or unusual conduct that the employer should inquire whether the employee has any issues that may be impacting workplace participation. This approach does go beyond the traditional duty on an employer. It is fair to say that discipline based upon conduct that is causally related to a disability does constitute an act of discrimination. However, making such direct inquiries, unless handled carefully, can trigger liability, the least of which is the obligation to provide accommodation on the basis of perceived disability, whether or not the employee has such a disability.
The policy does conform to the ever expanding recognition of human rights in Canada, including the right to be free of discrimination in the workplace. We encourage employers to review existing practices around medical documentation, disability management, accommodation and attendance management and return to work policies. We suggest that you take the opportunity to review this matters as your organization considers its ADOA compliance.
The lawyers at Dunsmore Law remain available to assist you. Please contact us for more information about the new policy, and how your organization can ensure that it is consistent with the obligations of the Human Rights Code.
Thisarticle date does not constitute legal advice and represents only a summary of the issues.