Medical Information:
Who is entitled to know what?
And how do you get what you need?
Pre-Conference Workshop
Calgary

Presented by Lancaster House, The University of Calgary's Industrial Relations Research Group, and The University of Saskatchewan

►covering employment in both federal and provincial jurisdictions◄

Wednesday, May 30, 2012
Full-Day Interactive Session
9:00 a.m. – 4:00 p.m.

The Metropolitan Conference Centre 
333 Fourth Avenue S.W.

Obtaining the information necessary to provide appropriate accommodation to employees is difficult because physicians, union representatives and management representatives may all have different ideas of what information is necessary. It is also often difficult to frame requests for information in a way that elicits the necessary information but does not cause alarm by seemingly asking for too much information. The rules regarding medical evidence at arbitration add another layer of complexity to determining what constitutes appropriate and sufficient medical information. In this workshop lawyers and health care providers will offer guidance on asking the right questions to receive the information you need and are entitled to obtain.

• Necessary Information: What obligation does an employee have to alert the employer that accommodation is necessary? Must the employee alert the employer at the beginning of the employment relationship if the need is known at that time? When will arbitrators impute to employers "constructive knowledge" of a disability? What information may an employer legally request (and what must an employee provide) in order to assess appropriate accommodation? Is the employer entitled to the employee’s diagnosis, prognosis, or information on the employee’s treatment? How does the employer’s entitlement to information vary with the type of accommodation requested? For example, is an employer entitled to different information to substantiate a long-term absence than it would be entitled to for a short term absence? What health-related questions are impermissible because they intrude too greatly upon an employee’s privacy? Can the employer or its agent consult the employee’s health care provider without the employee’s consent? Once the employer is in possession of health information, what steps does provincial law require the employer to take to shield that information? What steps does federal law require?

• Requesting the Necessary Information: What is the most effective way of requesting the information you need? How should unions and employers request information from physicians? Are standardized forms helpful? If so, what should and should not be on standardized forms? How specific should they be in their requests? What questions are likely to prompt physicians to provide useful information? What types of questions are likely to result in physicians providing vague information? What are some examples of doctors’ notes that are too vague? If you receive a vague response, how should you request more specific information? How much time should employers give employees to get the medical information they have requested?

• GPs, Specialists and Other Health Professionals: Is medical information from an employee’s treating GP sufficient for accommodation purposes? When do you need information from a specialist physician? For mental health issues, is information from a GP sufficient? Or should you seek medical information from a psychiatrist? How should parties treat information from licensed counselors and psychologists? How should employers treat information from other health care professionals who are not physicians, for example, physiotherapists? When is an independent medical exam appropriate? When can the employer ask an employee to see a physician of its choice? Are there particular types of questions that general practitioners are ill-equipped or reluctant to answer? What guidelines and/or professional rules guide physicians in providing information to employers and unions?

• Medical Evidence in Legal Proceedings: What are the characteristics of persuasive medical evidence? What medical information must the grievor/union disclose to the employer during the grievance/arbitration process? In what circumstances will an arbitrator order a grievor to submit to an independent medical exam (IME)? How should the physician who is to perform the IME be chosen? Does the arbitrator appoint someone? Does the employer choose? If the employer has an occupational health department or other department that keeps records relating to an employee’s medical condition, what medical information must that department disclose prior to arbitration? Can the employer review and redact an employee’s medical file from its occupational health department/provider prior to producing this information to the union/employee? What conditions to disclosure of medical records will an arbitrator order to protect an employee’s privacy interests? When must a physician attend an arbitration hearing to give testimony regarding a medical report? Should medical records simply be admitted on consent of the parties? If a physician must attend to give evidence, who pays for the physician’s attendance?