In a case reported by the CBC last week, a Yellowknife woman said that she was distraught after a detailed report about her mental health was released to her employer. The woman has a mental illness and agreed to a psychiatric assessment because she was seeking various workplace accommodations. She says that she never agreed that the full report could be released and she was shocked to learn that her employer had read a report which included information about how much she drank, her sexual past, her mental health diagnosis and how she felt about her employer.
The employee in this case believed that her work environment with the NWT government was harmful to her health and that her employer was ignoring suggestions from her doctor on how to accommodate her illness. The employee’s own doctor actually suggested the psychiatric assessment as a way that she might strengthen her case for her desired accommodation. She expected that the psychiatrist would simply send a letter to her employer after the assessment, confirming her need for accommodation. The employee says that she never agreed that the full report could be sent to her employer and says that she even received an assurance that this would not be done.
The woman’s doctor disagreed, saying that the employee gave verbal consent. The employee said that, even if she had given this consent (which she denies), she would have expected a physician to caution her against doing so. Six months after the report was received by the employer, the woman was laid off by the NWT government and she continues to believe that the contents of the report (i.e. her private and sensitive personal and medical information) influenced this decision.
The facts of this case are probably shocking to most, and so it likely comes as no surprise that we would say that there are definite lessons to be learned from this employee’s experience.
- Ask specifically where medical assessment results will be sent and in what form.
This advice applies to both employees and employers. If an employee attends at a medical appointment on their own initiative with the intent of obtaining medical advice to provide to their employer, they should ask about the exact nature of the information that will be produced from the assessment, how that information will be presented (in report or summary form) and to whom. If the employee has sought out the assessment, it might seem logical that the report would be provided directly to the employee who can then provide it to their employer, but this may not always be the case and so it’s worth confirming.
Employers should be equally vigilant if they are requesting that an employee attend for an independent medical examination of some kind. Instead of requesting a generic report on the outcome of the assessment, employers would be wise to consider the exact nature of the information they are seeking and to request that only this be provided. One effective way to do this is through the preparation of a questionnaire, often prepared with the assistance of legal counsel so that legal advice can be sought about the appropriateness of the desired information. It would seem far easier for a physician to answer an employer’s direct and targeted questions, rather than preparing a lengthy, generic report on the outcome of the appointment. The problem with employers receiving excess information about an employee’s medical condition is that subsequent employment decisions relating to the employee may be perceived as being tied to the receipt of the information, as was the case here with the Yellowknife employee.
- Beware the verbal consent.
It seems astounding that, in today’s age of privacy hyper-sensitivity, any physician would rely on a patient’s verbal consent as a basis for releasing confidential medical information to an employer. Lawyers will always tell you that the problem with any agreement reached verbally is that, later on, when there’s a problem, there may not be consensus about the nature of that agreement. Inasmuch as the physician seems to have said in this case that the woman’s consent was given verbally, she clearly disputed this later, and, in the absence of a written authorization form, it may be impossible for the physician to establish that consent was actually given. It’s always important to get it in writing.
- Recognize that sometimes medical assessments are a necessary part of the accommodation process.
I was extremely surprised to read that Dr. Chris Summerville, a board member for the Mental Health Commission of Canada and the Chair of the Manitoba Schizophrenia Society, was quoted as saying in relation to this case, “A person should not have to go and get a psychiatric report to demonstrate that they need workplace accommodation.” He goes on to say, and I don’t disagree that “accommodation is necessary for many people in the workplace, including people with mental illness.” However, I do disagree that employees should never be asked to get psychiatric assessments as part of the accommodation process.
First of all, human rights jurisprudence makes clear that accommodation is a “two way street” and that both employees and employers need to participate in this process of identifying and providing appropriate accommodation in the workplace. To expect an employer to do so without adequate access to relevant medical information, and especially in the case of mental illness, is to set an employee up for failure and possible exacerbation of their medical condition.
Sometimes the only way the employer can truly understand the employee’s medical needs is to request information from a medical assessment and, in the case of mental illness, this could very well be a psychiatric assessment. When we work with our employer clients, we find them overwhelmingly supportive of their employees’ accommodation rights and willing to work constructively to explore accommodation options. However, employers cannot and should not operate in a vacuum. Very often, specialized medical information is necessary to inform the process of considering reasonable accommodation that meets an employee’s medical needs and restrictions.