Howard Levitt: Why Going Tough on Employee Medical Information Can Backfire for Organizations

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Howard Levitt and Rob Lilly

Medicinal leaves have gained importance in recent years. Employers are increasingly in the unenviable position of reintegrating their workers into the labor market. But it’s not about simply providing the employee with an ergonomic chair and greeting her with “Welcome back, pick up where you left off”. It is a calculated process – often riddled with pitfalls – designed to ensure success for both employer and employee.

A recent case brought by a former female employee against TFI International Inc./TFI Transport before the Canadian Industrial Relations Board exemplifies what an employer should not do when an employee requests post-vacation placement. It also clarifies when an employer can force an employee to take part in an independent medical examination (IME). Spoiler alert: It’s not that simple.

The woman worked as an environmental consultant at TFI for eight months before taking short-term leave due to mental health issues. The insurance company stopped providing benefits after six months, claiming she had a pre-existing condition. Rather than contest the refusal, the woman remained on unpaid leave for about four months until she was able to return to work.

The woman gave TFI a note from her psychiatrist ordering a gradual return to work. Presumably TFI could have easily accommodated a part-time job for the six weeks, especially as the woman would be free and free to resume her full duties afterwards. Instead, it was played hard and didn’t end well.

TFI urged the woman to take up full-time employment without hardship. TFI also obtained her medical records from disability insurance without the wife’s consent. After the woman asked why TFI rejected her doctor’s recommendations, TFL upped the ante and insisted she attend a medical evaluation (IME) with her chosen psychiatrist. The trucking giant further accused the woman of withholding information about her mental health when she applied for the job.

The woman attended the IME with concern and felt bullied by threats of disciplinary action if she did not.

TFI requested the woman’s full psychiatric and psychological records after his psychiatrist determined they were necessary to complete his report. When she refused, TFI limited his request to four years before she began work, still an overstatement. The woman rightly refused again.

With that refusal, TFI fired the woman on good cause, alleging that she (1) wrongly refused access to her medical records and (2) falsely claimed that she was suitable for the job when hired.

The woman filed a complaint under Canadian Labor Code a wrongful dismissal remedy for workers who have been fired or effectively fired by federally regulated employers. The Canadian Industrial Relations Board concluded that TFI not only failed to establish a reason for both reasons, but also failed to accommodate it. Despite only 22 months of service, the woman received three annual salaries (salary up to the hearing date) plus interest and costs. The Board also awarded $50,000.00 in punitive damages to punish TFI for its invasion of privacy, insistence on an IME and non-compliance.

The case offers important insights for employers who want to access medical information or request an IME:

1. Do not request an employee record from a disability insurer unless the employee has provided valid and current consent to the insurer or employer.

2. If additional medical information is required to assess an employee’s housing needs or ability to return to work, explain what is missing from the information provided and why such information is “reasonably necessary.” Obtain this information directly from the employee or the employee’s treating physician.

3. Employers do not have an automatic right to apply for an IME. In its decision that TFI unlawfully subjected the woman to an IME, the Board distilled the following principles from Canadian case law that apply to an employer’s application for an IME:

• “In the absence of any contractual or legal right, an IME is only permissible in exceptional and rare cases;”

• “Before requiring an IME, an employer has a duty to explain why a medical certificate is inadequate and to consider other avenues to obtain the necessary medical information.”

• “An employer must have reasonable and probable reasons that the worker is incapacitated or that it would be unsafe for the worker or others to return to work;”

• “An employer must not compromise the objectivity of the examiner by the information provided;” And

• “The IME cannot be carried out without the consent of the worker, except in cases where the IME is required by law, collective agreement or other agreement.”

Inappropriate requests for personal medical information proved costly. Had TFI agreed to the woman’s proposed reentry plan, it could have avoided a judgment well over $300,000. Employers in all industries confronted with workers returning for medical reasons should review the Committee’s guidelines in this case when considering whether they really need more information about medication or an IME.

Howard Levitt is senior partner of Levitt Sheikh, employment and labor law attorneys with offices in Toronto and Hamilton. He practices labor law in eight provinces. He is the author of six books including The Redundancy Act in Canada. Rob Lilly is with Levitt Sheikh.

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