Part II. Monitoring of health changes in employees

In this part, we shall review the means available to employers for monitoring the health of employees who are absent because of illness or injury. Management of such absences poses special difficulties, since it is not easy to predict the date or circumstances of an employee’s return. In such cases, we shall see that employers can get information to enable them to manage absences and returns to work as effectively as possible, particularly through doctor’s certificates, medical examinations and screening tests. We shall also see how the courts have restricted the use of such monitoring mechanisms so as to minimize infringements of employees’ fundamental rights to dignity, privacy and physical integrity.

2.1 The medical certificate and the collection of medical data

An employer needs certain information concerning a sick employee in order to manage such aspects as pay and benefits. When planning for a return to work, an employer must also be able to ensure that the work will be done safely and efficiently. An employer may require an employee to supply a doctor’s certificate providing the relevant information.¹¹

The content of the medical certificate, however, must be limited to the information that is indispensable to the employer in order to minimize any infringement of the employee’s privacy rights.¹² The Privacy Commissioner of Canada has indicated that it is appropriate for an employer to request a medical certificate confirming an employee’s disability and indicating the expected date of his or her return to work. An employer may also verify whether an employee returning to work after sick leave is fit to resume his or her duties, or whether workplace accommodation is required.¹³ An employer may refuse to allow an employee to return to work if the doctor’s certificate is not clear on this point.¹⁴ However, this does not necessarily mean that an employer is entitled to know the specific diagnosis of an employee’s illness.¹⁵ The obligation to include a diagnosis on the certificate is limited to cases where it is clearly and legitimately necessary.¹⁶ For example, in case 257, the Commissioner found that the corporation’s policy of demanding a medical diagnosis in the case of sick leave requiring a medical certificate was contrary to the Personal Information Protection and Electronic Documents Act. She deliberated as follows:

It was entirely appropriate and reasonable for the organization to require medical certificates when the employees’ absences exceeded the allowable limit for uncertified sick leave. However, the word of the employees’ physicians should have been sufficient. The corporation was entitled to request and receive certification that the complainants were ill, but, as the organization itself has acknowledged, it is not necessary to require employees to provide diagnostic information in cases of suspicious absences. Although such a purpose is legitimate and diagnostic information may in some circumstances be necessary to its fulfilment, it was both unnecessary and inappropriate for the organization to have demanded medical diagnoses in the circumstances of these cases.

An employee is free to authorize an employer to access medical information. However, an authorization that is too broadly worded, leading to the disclosure of information on physical and mental health that is none of the employer’s concern, may be found to be inconsistent with the Act.¹⁷

An employer’s right to access medical information about an employee does not extend to all representatives of the employer,¹⁸ who is required to put in place a system for collecting and holding information that preserves confidentiality, in accordance with the Privacy Act.¹⁹ Employers can avoid many difficulties related to the disclosure of medical information by adopting a clear policy that all employees are familiar with.²⁰ By developing precise standards for the use of information, the employer instills a culture of trust that encourages employees requiring accommodation in order to return to work to provide such information more readily.²¹

2.2 Medical examinations

Conducting a medical examination violates a person’s right to physical integrity and privacy. The Supreme Court has ruled that paramount importance must be given to physical integrity. Limitations of that right are thus allowed only under very specific circumstances.²²

In accordance with its right to manage and its obligation to protect employees’ health and safety, an employer may require an employee to undergo a medical examination by a specialist of its choosing when the employee returns to work. However, the employer should exercise such a right only if it has reason to believe that an employee is not fit for work, and that a return to work might endanger his or her health or that of others.²³ An examination will generally be allowed when an employee is returning to work after a serious illness or accident. However, mere apprehension of a relapse or the possible aggravation of a medical condition is not sufficient to refuse to accept the return of an employee who presents a certificate stating that he or she is fit for work. An employer must demonstrate a real, immediate and significant risk to the employee’s health.²⁴

There are cases where a medical examination is explicitly provided for in legislation or in a collective agreement. Even if an examination is provided for in a collective agreement or an attendance program, such provisions do not take precedence over fundamental rights and must not be abused.

2.3 Alcohol and drug testing

When an employee return to work after treatment for alcohol or drug use, an employer is generally entitled to test whether an employee is abstaining from drugs or alcohol and ensure that the employee is able to work without endangering himself or herself or co-workers.²⁵ Some adjudicators who have overturned dismissals for drug or alcohol use have required reinstated employees to submit to testing by the employer for periods of up to two years.²⁶ Since alcohol and drug testing violates the dignity, physical integrity and privacy of the individual, employers are restricted to the testing necessary to ensure sobriety, without unduly infringing the employee’s privacy.²⁷