Purpose: The purpose of the HR Minute is to provide clients with timely information about human resources issues. Please take a moment to read this important information.
The recent case of Provincial Health Services Authority (“Provincial Health”) and HAS BC (Kozak) provides insight to employers regarding the thin line between an employee’s right to privacy and an employer’s right to information when it comes to obtaining medical information to substantiate a leave of absence.
61-year-old Kozak had been employed by Provincial Health in the medical laboratory area for 40 years. Kozak commenced a sick leave on January 23, 2017 without presenting medical documentation. In February 2017, the employer advised Kozak that she needed to provide medical clearance before returning to work, but she refused. Her failure to provide the requested medical information lead to several disciplinary measures as per the company’s collective agreement, and eventually resulted in Kozak’s termination on April 10, 2018. Kozak filed a grievance against the employer, arguing that she had privacy concerns related to providing medical documentation and that termination was excessive provided her length of service as well as the economic hardship it would cause. The grievance was denied and the matter proceeded to arbitration.
The arbitrator found that the employer had the right to ask Kozak for medical information because they had no documentation to support the length of the leave or her subsequent return to work. Although Kozak’s length of service and economic hardship caused by the termination were mitigating factors in her favour, reinstatement of employment was found not to be possible since Kozak refused to provide the employer with any medical information. Ultimately, the just cause termination was upheld.
While employers are not entitled to request an employee’s entire medical file, or even their diagnosis, the Provincial Health case confirms that employer’s do have a right to request medical information/documentation to substantiate an employee’s sick leave and/or clearance to return to work following a sick leave. It also confirms that when an employee fails to do so, disciplinary action can be taken, up to and including termination for just cause.
It is important that employers have policies or provisions in their collective agreement in place for leaves of absence and return to work which both contain the procedure to request supporting medical documentation. Policies should also include repercussions for failure to provide the requested information.
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