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Duty to Disclose and Provide Medical Information

Suzanne Solsona

Associate
May 29, 2024

In recent years, the issues of mental health and burnout in the workplace have become hot topics of conversation. The COVID-19 pandemic revealed, as well as increased, the prevalence of mental health struggles of employees, which has in turn, increased the complexity of the different facets of workplace accommodation.

Many employees are aware that Human Rights legislation protects them from discrimination based on a disability. Disabilities can be physical or mental (cognitive) and include conditions such as depression, anxiety, attention deficit (hyperactive) disorder and autism spectrum disorder.  Physical disabilities are more often visible, and the accommodations required are more often straight forward. However, employees who have been diagnosed with a mental health condition or are neurodiverse may not initially (or ever) present as persons requiring adaptations or accommodations in the workplace. Where the disability is “hidden” what is an employee’s rights and responsibilities in the workplace?

Health records and medical information is among the most private and sensitive types of personal information that can be collected by an employer. Generally speaking, an employee does not need to inform their employer of their medical conditions or disabilities as long as they are able to perform the essential functions of their job without an accommodation, adaptation or medical leave.

However, if an employee’s condition, in fact, negatively impacts an employee’s performance and/or they require an accommodation, the employee has a duty to disclose to their disability to their employer. Sometimes it will be obvious to an employer that performance issues are due to a disability, but sometimes it will not be so apparent. For example, it might be that depression is impacting the employee’s ability to attend work on time on a consistent basis. In those circumstances, the employee has a positive duty to disclose to their employer that they have a medical condition, else the employer will not generally have a duty to provide accommodations.  In such a situation, the employee risks facing allegations of insubordination or unacceptable performance levels if they do not disclose the disability to their employer. At this juncture, several questions arise:

  1. What medical information must be disclosed to the employer?
  2. Does an employee have to reveal their medical diagnoses?
  3. How detailed does the information need to be?
  4. What the potential consequences if an employee fails to provide medical information to their employer?

If an employee seeks accommodations in the workplace, an employer is legally entitled to ask questions about the functional limitations caused by the employee’s health condition. In this regard, an employer also had the right to know limitations as they relate to alternate positions in the workplace and evaluating them for suitability. An employer is also entitled to ask for the employee’s prognosis (the doctor’s opinion about how the condition will change over time, if at all). However, an employer is not entitled to know an employee’s diagnosis if the employee does not want to share it.  This protects the employee from any stigmatization that might result from the employer (or other employees) knowing the exact medical condition.

Employees who are requested by their employer to provide proof of a disability or condition must be given a reasonable amount of time to obtain the information required. Health professionals are not always immediately available for a consultation and thus employees should be afforded sufficient time to fulfil the request.

Employees requesting or requiring accommodations who refuse to provide adequate medical proof to their employer risk being disciplined if the information requested of them is reasonable. However, the detail of information that an employee is legally obligated to disclose and that an employer is entitled to collect, depends on the situation.

Each situation must be evaluated in context and based on the employee’s position and condition. Some positions may require more oversight, especially if there are safety issues in the workplace or the employee is dealing with a vulnerable population. Employees must work in good faith with their employer and actively participate in the accommodation process. The obligation to cooperate and disclose also increases where the employee has been absent from the workplace on a short or long-term disability related leave. Additionally, remember that unionized environments are different than non-unionized ones and where there is a collective agreement in place, it is important to consult its terms to ensure the parties are complying with their contractual obligations.

Two recent cases demonstrate the obligation of employees to inform employers and provide sufficient medical information regarding their disabilities. First, in XS v. YP, 2015 BCHRT 97, the BC Human Rights Tribunal found that that the Complainant employee had not provided sufficient information to the Respondent employer so that it could implement accommodations in the workplace. In that case, the Complainant alleged that the Respondent had not accommodated his mental disability. The Complainant was a corrections officer who experienced significant stress in the workplace. While the Complainant had advised the Respondent that he was feeling a lot of stress in the workplace, there was no indication that the level of stress had resulted in a medical condition. The Tribunal emphasized that “Stress in itself is not a disability for the purposes of the Code.[1] Since the employer could not have reasonably known that the Complainant had a medical disability, it could not have discriminated against the Complainant. The takeaway from this case is that an employee must communicate with their employer about their disability, especially if it is a mental health condition. If there is nothing to indicate to their employer that their mental health has deteriorated to the point of requiring an accommodation, an allegation of discrimination will not succeed.  

In the second case,[2] the Complainant alleged that his employer discriminated against him based on a chest injury as well as an elbow injury.  The Respondent applied to have the complaint dismissed. After a discussion of the evidence before it, the Tribunal dismissed the allegation of discrimination based on the chest injury but allowed the allegations relating to the elbow injury to proceed to a hearing. The crucial difference between the two injuries was that the Complainant had not provided any medical information to the Respondent regarding his chest injury after he had provided a doctor’s note clearing him for work. Thus, there was nothing to alert the Respondent that the Complainant’s chest injury could impact or was negatively impacting his ability to perform his job. On the contrary, the Complainant’s elbow injury was reported to the Respondent and there was medical evidence in the Respondent’s possession that the Complainant experienced some ongoing limitations. Because the employer had at least some knowledge of the elbow injury, the allegations could possibly form the basis of the alleged discrimination and were therefore allowed to proceed to a hearing.

In sum, it is important for employees to remember that employers are not mind-readers; they must communicate with their employer and disclose their disabilities if they wish to be accommodated, even if that means having an uncomfortable conversation about mental health or a neurodiversity that is not well-understood. In the same vein, employers must remember to always be alert to changes in an employee’s job performance or behaviour that might raise the spectre of a mental health condition (or neurodiversity) being the cause.

[1] Matheson v. School District No. 53 (Okanagan Similkameen) and Collis, 2009 BCHRT 112para. 14

[2] Bellin v. Northwest Plastics Ltd., 2024 BCHRT 12.

If you have any questions about your duty to disclose and provide medical information to your employer, please contact us at Ascent Employment Law for more information. We are here to help!