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17 / 10 / 18

Employer’s right of access to employee medical records

Two recent decisions reiterate that management is entitled to require access to an employee’s medical records where the context so requires and confirm that the employee has a duty to comply under such circumstances.

Fraternité des policiers de Saint-Eustache v. City of Saint-Eustache, 2018 QCTA 328

In the first decision, the complainant was on leave for medical reasons. After his return to the workplace, and based on the opinion of his attendant physician, the City accommodated the complainant by exempting him from night-shift service. At a later time, the company physician was of the view that the complainant was able to work the night-shift. The opinion of a third physician was thus sought and he concluded that the complainant was able to resume his work and that no functional limitation remained in connection with the pathologies that had initially triggered his sick leave and the accommodation granted. However, he did find that the complainant possibly suffered from sleep apnea.

Consequently, the employer asked the complainant to undergo tests at a clinic specialized in sleep disorders. Based on the test results, a recommendation was made that he be exempted from working the night-shift for the next three months. After that period, the test results were forwarded to the complainant.

However, the complainant did not forward this report to the employer. He solely transmitted the medical note stating that he should solely continue to work on day-shift for the next three months. The employer then asked the complainant to sign the authorization form permitting it to obtain complete disclosure, which was refused by the employee.

Faced with this refusal, the employer decided to cancel the accommodation related to night-shifts and sent the complainant home. This decision was challenged by way of grievance.

Decision

The arbitrator ruled that the City was entitled to obtain relevant medical information concerning the capacity of the complainant to perform his duties, whether there was sufficient evidence to justify the exemption from working night-shifts and for the purpose of determining the duration of this limitation.

The arbitrator pointed out that the case law recognizes the right of a disabled employee to a reasonable accommodation. However, this right is accompanied by the corollary obligation for the employee to collaborate with the employer in seeking a solution.

In this regard, the determination of a reasonable accommodation is subject to the prior demonstration of a medical condition that is deemed to be a disability. However, the relevant data could not be obtained without the consent of the complainant. His collaboration was necessary, and yet he unreasonably refused to grant his consent.

Under the circumstances, the arbitrator ruled that the decision of the employer to cancel the accommodation was an appropriate administrative measure and dismissed the grievance.

Syndicat des professionnels municipaux de Montréal v. City of Montréal, 2018 QCTA 382

In the second decision, the complainant went on sick leave on April 7, 2017.

On August 22, 2017, the employer asked the complainant to sign the authorization form to permit access to her medical records for the first time. The complainant did not follow up on this initial request.   

On November 9, the employer forwarded another letter to the complainant, asking for her collaboration in authorizing access to her medical records, setting a deadline of November 21 to respond. The employer also stated that her ongoing failure to collaborate constituted a fault, and that in view of her conduct, suspended her without pay. The letter finally mentioned that the further failure to meet the November 21 deadline would result in her dismissal.

On November 22, the complainant forwarded the signed Access Authorization form, but in an amended form, as the employee mentioned that she was solely authorizing access as of December 4. On November 24, the Employer sent notice that it could not accept the form and that her suspension without pay would continue to apply. Management asked her to correctly fill out the form prior to December 5, or be faced with an order for dismissal. The employer finally received the duly completed form on December 4, 2017 and cancelled the complainant’s suspension without pay. 

This suspension without pay was challenged by way of a grievance.

Decision

The arbitrator first explained that the refusal by an employee to collaborate within the framework of a medical examination procedure may justify a suspension without pay where the employer has legitimate grounds to require the medical assessment or requires access to an employee’s medical records.

In this case, the arbitrator determined that the employer had no reason to impose a suspension without pay upon the complainant on November 9, since prior to that time the employer had not criticized her failure to co-operate.

The arbitrator ruled on the other hand that as of the November 9, 2007 letter, the complainant had been informed of her failure to co-operate and had therefore put on notice that she had until November 21 to comply.

Thus, as of November 21, 2017, the employer was justified in proceeding with the unpaid suspension of the complainant until she forwarded the required information. The suspension without pay was thus confirmed for the period from November 22 until December 3, 2017

Advice to Employer

These decisions illustrate the employer’s right to obtain relevant medical information necessary in order to properly handle employee files.

The employee’s refusal to co-operate with respect to disclosure of information may constitute a fault permitting the employer to take measures, including disciplinary measures such as terminating an accommodation arrangement or suspension without pay.

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