Ontario Human Rights Commission provides guidance on medical documentation and disability accommodation requests

By DLA Piper (Canada) LLP on February 21, 2017

On February 1, 2017, the Ontario Human Rights Commission (the “Commission”) released a policy position on the medical documentation to be provided when a disability-related accommodation request is made. This policy position supplements and reaffirms section 8.7 of the Commission’s Policy on ableism and discrimination based on disability, which was released in September 2016.

The Commission cites general confusion about the type and scope of medical information that needs to be provided to support a disability-related accommodation request as the reason for the policy position. In particular, the Commission suggests that sometimes medical notes are too ambiguous or employers request personal medical information that is too invasive.

The following medical information should be provided to an employer to support a disability-related accommodation request:

Confirmation that the employee has a disability;
the limitations or needs associated with the disability;
whether the employee can perform the essential duties or requirements of the job, with or without accommodation;
the type of accommodation(s) that may be needed to allow the employee to fulfill the essential duties or requirements of the job; and
regular updates about when the employee expects to come back to work, if they are on leave.

The focus of the information should always be on the employee’s functional limitations associated with the disability, rather than a diagnosis. Generally speaking, employers do not have the right to know confidential medical information, such as the cause of the disability, symptoms or treatment, unless that information clearly relates to the accommodation being sought or the employee’s needs are complex, challenging or unclear and more information is needed. Where more information about an employee’s disability is needed, the information requested must be the least intrusive of the employee’s privacy while still giving the employer enough information to make an informed decision about the accommodation.

Ultimately, the policy position emphasizes striking a balance between the dignity and privacy of the employee and the employer’s need to gather relevant information. Employers should review the Commission’s policy position and Policy on ableism and discrimination based on disability and assess whether their current policies and practices are in compliance.