In Ottawa Hospital v Ontario Nurses’ Association, the arbitrator held the employer was justified in denying the employee short-term disability (“STD”) benefits, despite the employee taking medical leave. Specifically, the arbitrator found the employee was able to work, his conditions were not disabling, and he appeared to be attempting to avoid being placed on unpaid leave for not complying with the employer’s mandatory COVID-19 vaccination policy (the “Policy”).
The employer’s request for further medical information was found to be appropriate due to the vague medical documentation it continued to receive, the relevancy of the suspicious timing of the employee’s medical leave, and the fact that the employer used the least intrusive means possible in asking for more information.
The Facts
The employee is a nurse with Ottawa Hospital, the employer. The employer implemented the Policy; however, the employee refused to become vaccinated. The employee received a final warning letter on October 19, 2021, stating he would be placed on unpaid leave effective November 1, 2021, for failing to comply with the Policy. Two days later, the employee went on medical leave.
The employee provided two medical notes to support a leave from October 23, 2021, until January 31, 2022, with each medical note vaguely setting out that he is off work “for medical reasons”. Further, the first medical note specified the employee was “totally disabled” without providing other information.
The same medical professional (“Doctor”) completed an Attending Physician Statement Report (“APSR”) on November 26, 2021, confirming the employee was “totally disabled” due to his “attention deficit and mood dysregulation”. The APSR also stated the employee was seeking treatment for his psychological and ophthalmological conditions. While the employee was previously diagnosed with attention-deficit/hyperactivity disorder (“ADHD”) and retinopathy, an eye condition, he never raised these issues to the employer prior to November 2021.
The employer contacted the employee, the Doctor, and his ophthalmologist for more information, but was provided with inconsistent information. Although the employee claimed he sent the APSR to “his doctor” in October 2021, the Doctor confirmed she both received the form and saw the employee for the first time on November 26, 2021. Given the timing of the employee’s leave in relation to the employer’s mandatory vaccination deadline, the employer asked the Doctor whether she could attest that the employee’s medical leave was due to a disability rather than an attempt to avoid vaccination. The Doctor responded she could not “truthfully refute” the employee was attempting to avoid the vaccination. The Doctor clarified she was not treating the employee’s retinopathy and could not comment on its disabling effect, and stated she could not attest to the validity of his ADHD.
The ophthalmologist verified the employee’s retinopathy was not disabling and did not require the employee to be on medical leave, the employee refused treatment in September 2021, and his eye condition did not prevent the employee from returning to work.
Ultimately, the employer denied the employee’s STD benefits, as the medical information did not support that he was totally disabled.
The Decision
The arbitrator found that the employee did not provide sufficient medical information to support his claim for STD benefits and that the employer was justified in requesting additional medical information. It is the employee’s responsibility to provide sufficient documentation to demonstrate their illness or disability prevents them from performing the duties of their employment. Where the employer has reasonable cause to question the “genuineness, accuracy, or quality” of the medical information, the employer is entitled to request further medical information.
In this case, the employee’s medical information did not provide details of his limitations, treatment, or prognosis for the employer to understand that he could no longer perform his work duties due to a disability.
While employers are generally limited in what medical information they can request, the arbitrator found the employer had reasonable cause to suspect the validity of the employe’s absence, given that the employee began his medical leave two days after receiving the final written warning for not complying with the Policy. As the medical information was vague, the employee had never raised issues regarding his ADHD or retinopathy prior to taking medical leave, and the details of his medical information were inconsistent, the employer needed further information to understand how the employee was totally disabled. The arbitrator found it was not enough for the Doctor to declare the employee as “totally disabled”.
The arbitrator also held that it was not inappropriate for the employer to provide the Doctor with additional context surrounding the timing of the employee’s medical leave in relation to the Policy, given that the reporting of mental health symptoms is often subjective and those facts were relevant.
Takeaways for Employers
Employers should accept medical information in good faith; however, sometimes the medical information provided is insufficient for an employer to fulfil its legal obligations. The line between employer obligations and employee privacy is thin, and employers should be careful to seek medical information from employees in the least intrusive manner possible.
Generally, “least intrusive” means asking for no more than confirmation that the employee’s absence is related to a disability; the general nature of the illness or injury (but not the diagnosis); the employee’s limitations; whether they are receiving treatment (but not the treatment plan); and the expected return-to-work date.
An employer may request further medical information if it has reasonable cause to suspect the information is untruthful, incomplete, or inaccurate. However, employers should support why they believe this to be the case. In cases where medical information continues to be incomplete or inconsistent, employers may, as a last resort, request the employee attend an independent medical examination.
Employers should ensure they have proper consent from the employee before communication with the employee’s medical professional and should be careful to keep their questions within the scope to which the employee expressly consented. Employers can expect absences related to mental health reasons to increase and should be mindful that arbitrators tend to place a higher burden on employers to justify requesting mental health records, due to the stigma surrounding mental health issues and the importance of employee privacy. Along with other criteria, an arbitrator must be satisfied that the disclosure of mental health records will not cause the employee undue prejudice.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
