Ontario’s Divisional Court recently confirmed that employers have a right to ask employees to undergo an Independent Medical Examination (“IME”) in certain circumstances, to facilitate the accommodation process.
The employee in Bottiglia v Ottawa Catholic School Board (“Bottiglia”) worked for the Ottawa Catholic School Board (the “OCSB”) for 35 years. While working as Superintendent, he went on leave in 2010, suffering from unipolar depressive disorder with anxiety features. He resigned from his employment in 2012 without having ever returned to work.
The employee brought an application against the OCSB to the Human Rights Tribunal of Ontario (the “Tribunal”) alleging the OCSB had failed to accommodate his return to work. The OCSB had refused to allow him to return without undergoing an IME.
The Tribunal ultimately dismissed his claim, and the employee applied for judicial review of that decision. The Divisional Court upheld the Tribunal’s ruling. It found that it was reasonable for the OCSB to have demanded an IME in order to determine how and whether the employee could be accommodated before allowing him to return to work.
While on leave, the employee had provided notes from his psychiatrist indicating that his condition was moderately severe, relatively treatment resistant, that he would require an extended time off work, and that a return to his workplace could be disastrous to his mental health and presented a significant risk of relapse. The OCSB became wary when, in the fall of 2012, the employee suddenly provided documentation from his psychiatrist indicating that he could return to work on a “work hardening” schedule immediately.
The OCSB was concerned that the psychiatrist did not understand the extremely demanding nature of the Superintendent position, and the associated supervisory duties which had changed since the employee went on leave. The psychiatrist had suggested an unusually slow work hardening schedule of a maximum of four hours per day, two days per week over a six to 12-month period, and indicated that the employee might never be able to return to a full-time capacity. The employer was concerned that this accommodation was simply unworkable due to the nature of the Superintendent position. The OCSB was also suspicious, as the psychiatrist’s sudden about-face coincided with the expiry of the employee’s paid leave benefits. As such, the OCSB determined that a second medical opinion was necessary.
The Court found that employers are justified in requesting IMEs as part of their duty to accommodate under the Ontario Human Rights Code (the “Code”) in certain circumstances.
Section 17(2) of the Code states as follows:
No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
The Court found that the duty imposed on employers by this section brings with it the right, in certain circumstances, to request an IME. This does not mean that employers have a freestanding right to request an IME at any time, or that employees must automatically submit to an IME as part of the accommodation process. Rather, the Court held that where the employer has reasonable and bona fide grounds to question the adequacy and reliability of the information provided by its employee’s medical expert, an IME may be appropriate.
The Court noted that, before requesting an IME, it may be reasonable for employers to request additional information or clarification from an employee’s treating physician first. However, on the facts of this case, the OCSB had sufficient reason to question the adequacy and reliability of the information it had received from the employee’s psychiatrist, and as such the decision to immediately pursue an IME was reasonable. It found that, by refusing to attend the IME, the employee had failed to participate in the accommodation process.
This decision confirms that employers are entitled to demand the information necessary to allow them to properly fulfill their duty to accommodate under the Code. However, although the Court upheld the Tribunal’s decision, it also issued several caveats.
Before demanding an IME, employers should carefully consider whether it would be sufficient to ask for further information from an employee’s treating physician. Where there is a dearth of information, but no reason to suspect that the treating physician is misinformed or unreliable, this may be sufficient, at least as a first step.
If an IME is warranted, employers should be cautious in how they communicate with the independent medical examiner. Employers may provide the examiner with relevant information about the circumstances, but should be careful not to provide irrelevant information that might impair the objectivity of the examiner.
For instance, in Bottiglia, the employer advised the independent medical examiner of its suspicion that the employee was attempting to return to work because his benefits were about to run out, not because he was fit for duty. Although the Court upheld the Tribunal’s decision that the employer was simply providing a reasonable expression of its concerns to the medical examiner, it did so reluctantly and cautioned that such information was not necessary to the accommodation process.
The Court noted that where an employer has provided information to an examiner which might reasonably be expected to impair that examiner’s objectivity, employees will be justified in refusing to attend the IME. As such, employers would be well-advised to limit their communication to information about the nature of the employment, and the events leading up to an employee’s absence.
This post was first published on First Reference Talks.