Employers requesting that employees undergo independent (or second) medical examinations (“IME“) can breathe a sigh of relief. Previously, such employers ran the risk of an IME request being unjustified or ordered in bad faith, and as a potential basis for, or a contributor to, a subsequent discrimination complaint or wrongful dismissal lawsuit.
The difference between justified and unjustified IME requests becomes much clearer following the Ontario Human Rights Tribunal’s (“HRTO“) recent decision in Bottiglia v. Ottawa Catholic School Board (“Bottiglia“). In Bottiglia, the HRTO tackles the justified/unjustified IME issue by adopting a contextual analysis, which is both clear to follow and employer-friendly. The key takeaway is that a request for an IME will be warranted where it is found to have been reasonable in the circumstances.
The Facts and Arguments
The dispute in Bottiglia arose after the employer requested that the employee undergo an IME as a pre-condition to returning to work, following a period of extended medical leave. The proposed IME was rejected by the employee on the basis that the (initial) medical opinion supplied by his treating physician was sufficient for the employer’s intended purpose, which was to design an individualized return to work program for the employee.
The employee alleged that the IME request was unjustified, in bad faith, and designed principally to thwart his return to work. The employer’s insistence on an IME, in lieu of simply following-up with the treating physician, was presented as evidence of an underlying malicious intent.
The employer argued that the IME was necessary given the various deficiencies found in the medical documents submitted, including contradictory statements regarding the fundamental question of whether the employee could return to work on the proposed date. The intent of the IME, the employer further specified, was principally to gather the information necessary to properly design an individualized return to work program, as mandated by law.
The HRTO gave considerable weight to the adequacy of the return to work plan prepared by the treating physician, which it found to be inadequate. There were several factors underlying its determination. First, the HRTO agreed with the employer that that the plan proposed abnormally onerous accommodation provisions. This assessment was informed by contrasting the current plan against past plans received by the employer in similar circumstances. Second, the plan did not set out satisfactory reasons for the recommended accommodations. Third, the plan did not address any of the unique characteristics of the employment position, which the HRTO held could be reasonably indicative of a lack of knowledge about the position on the part of the treating physician.
On examination, the treating physician acknowledged that the return to work plan was a “boilerplate recommendation”. As a result, the HRTO held: “I am not satisfied, given this testimony, that the proposed accommodation measures were specifically crafted for the applicant’s situation and that the [employer] had no basis for questioning their appropriateness.”
The HRTO ultimately decided in the employer’s favour, finding that the employer’s concerns about the treating physician’s conflicting positions were substantiated and that the request for an IME was reasonable in the circumstances. In its decision, the HRTO returned several times to the employer’s legitimate and overriding (legal) obligation to gather the necessary information to prepare an appropriate accommodation plan.
This decision is particularly interesting as the employee had noted that the employer disregarded its own policy, which required it to take reasonable steps (including following-up with the treating physician) before requiring an IME. The employee noted this action was indicative of the arbitrariness of the employer’s insistence on an IME. While the HRTO agreed with the employee’s argument in principle, it maintained that the reasonableness test earlier specified remains the focus of the analysis, noting the policy manual “should … not be seen as either fettering or limiting an employer’s [legitimate] obligation…”
Takeaways for Employers
The HRTO’s analysis was rooted in the reasonableness of the employer’s request for an IME, given the IME’s role in helping the employer fulfil its legitimate obligations in the accommodation process. The overriding question is, in all the circumstances of the case, was the employer’s request for IME request reasonable. Typically, this will require an employer to demonstrate: (i) the inadequacy of the medical information provided (with am emphasis on the return to work plan), and (ii) the necessity of such information in order to prepare individualized accommodation process.
Many thanks to Puya Fesharaki for his assistance in drafting this blog.