'They got information that they would not have been entitled to… earlier than they should have'
“If an employer has a set accommodation process, every set process typically will have a mechanism where if the medical information is deemed insufficient, there is a protocol to address that - you can't jump to that protocol without exhausting the regular steps, because otherwise you're discriminating and you're treating that situation differently than the policy that you've created.”
So says Michael Penner, a labour and employment lawyer at Levitt LLP who frequently practices in the North, after the Northwest Territories Human Rights Adjudication Panel found that an employer discriminated against a worker by asking for detailed medical information on a return-to-work form.
The worker was a laboratory technician at Inuvik Regional Hospital in Inuvik, NT, hired in September 2017.
In November, the worker began experiencing health problems due to a lack of sleep and poor eating habits. He believed that his problems were rooted in a focus on materialistic things, so he started throwing things out of his home. His neighbours and landlord became concerned about his behaviour.
The worker’s behaviour at work also became “more agitated and hyper-vigilant,” which was noticed by co-workers.
Return-to-work form
The worker was admitted to the hospital on Dec. 4. He was diagnosed and treated for bipolar disorder causing a manic state. On Dec. 21, he completed a return-to-work form at the hospital’s request that indicated his anticipated return-to-work date was in February 2018. The form also indicated that the worker had stabilized but required ongoing treatment.
The form also differed from the hospital’s template, as the questions had been altered from asking about limitations impacting the worker’s ability to perform his job duties to if he had a “medical condition” impacting his abilities. It also removed an option for the doctor to skip a question with more details.
The worker was released from hospital on Dec. 24.
Following his discharge, the worker didn’t feel that the form accurately reflected his ability to return to work. He felt that he could return earlier and he wasn’t subject to several limitations indicated on the form.
The worker requested a second return-to-work form on Jan. 5, 2018, but there was a delay. Not wanting to wait, he submitted a form from the hospital’s online policy indicating that he was able to resume working immediately without limitations on a graduated basis. This form was completed by a different doctor and contained information that contradicted the first form – particularly the timeline for returning to work full-time - so the hospital asked him to submit another return-to-work form for clarification.
Return delayed
The worker submitted it on Jan. 30 and he returned to work on Feb. 6. However, he believed that the hospital wasn’t following the plan outlined in the Jan. 30 form, causing his return to full-time work to be delayed.
When the worker returned to work, he noticed that his name had been removed from the scheduling board, which was uncommon because people who were absent due to vacation or sick time were usually left on the board.
While the worker was off work, the supervisor changed the code to the lab door, which was common practice to ensure only authorized people could enter. The code was changed regularly.
The worker filed a human rights complaint, accusing the hospital of discriminating against him by breaching his medical confidentiality with its altered return-to-work form that requested too much information and delaying his return by asking for additional forms to be completed. He also alleged that he was harassed because of his mental disability in the delay and the way he was treated once he returned to work.
“The issue that is most salient is the employer had a set protocol with set forms and basically they deviated from it by changing the form they used for everybody else,” says Penner. “So that constitutes the quintessential discriminatory piece, which is you're treating me different than you treat any other employee in this situation - not only did they do that, but they did it in a way that basically ensured they were getting more information; they were eliminating an option for the doctor not to give them information.”
Duty to accommodate
The panel noted that the duty to accommodate isn’t a “free-standing obligation” and arises to prohibit discrimination in respect of employment. In addition, to trigger the duty to accommodate under the Northwest Territories Human Rights Act, the worker would have to show that a neutral requirement or factor had an adverse effect on him because of his disability, said the panel.
The panel found that the worker experienced the symptoms of a mental health condition, which qualified as a disability protected under the act, and the “neutral rule” of requiring him to attend at the workplace had an adverse and differential impact on him because of the limitations his disability placed on him. This met the test for prima facie discrimination, the panel said.
The worker sought accommodation with time away from work while he was in the hospital and then returning on a graduated basis, but he believed that he was able to return without restrictions. However, the second form differed from the first form’s information, so it was necessary for the hospital to “satisfy itself that the [worker] could, in fact, safely return to work,” the panel said in finding it was reasonable to make additional inquiries into the worker’s status.
However, the hospital altered the template form to seek more information about the worker’s medical condition rather than simply asking about the doctor’s opinion on his ability to return to work, which “guided the physician to provide information about the [worker’s] medical condition that he would not have otherwise provided,” said the panel.
As a result, the panel found that the hospital sought and obtained information to which it wasn’t entitled about the worker’s confidential medical condition. This was a breach of the worker’s right to equal treatment without discrimination, the panel said.
Skipped steps in accommodation
“With any sort of psychiatric problem, that's obviously going to require a more sophisticated approach to accommodation than somebody with a broken finger,” says Penner. “But they jumped ahead a few steps - they should have just simply given him the regular form, gotten this feedback, and then expressed some dissatisfaction and asked him if he could get an [independent medical examination] or something to that effect - it's a more ponderous process, but it certainly doesn't reach undue hardship for them just to simply have taken the necessary steps.”
“They tried to rush it, they got information knowingly that they would not have been entitled to at that stage earlier than they should have,” he adds. “Had they gone through their process as it was laid out in their policy, they would have gotten to that point a little bit further down the road where could have legitimately asked for more information.”
However, the panel disagreed that the delay in returning the worker to work was unreasonable. The contrasting medical information gave the hospital the right to clarify his limitations and ask for another form to be completed, said the panel.
The panel acknowledged that the worker wasn’t completely forthcoming with his information, but the employer had to be patient, says Penner.
“Every medical situation is going to be different and have its own threshold of information that's necessary, and it's an ongoing obligation to actively participate in your own accommodation process,” he says. “I'm not sure if it was impatience or everybody knew it was more than what they were hearing from the doctor - there's no anonymity in the North and that likely tainted this whole process, because it coloured how they applied the policy, and that’s the pure definition of discriminatory conduct, they're dealing with him differently than they did somebody else.”
No proof of harassment
As for the changing of the lab locks and the removal of the worker’s name from the schedule, the panel found no harassment in these actions. The locks were changed regularly for security reasons and it was reasonable to remove the worker’s name when his return date was uncertain, the panel said.
The hospital was ordered to pay the worker $5,000 for injury to his dignity, feelings, and self-respect for inappropriately seeking his private medical information.
“They designed the policy and negotiated with the union how that policy is going to be implemented, so if you're going to deviate from it, be prepared for something like this because you’re treating that person differently,” says Penner. “You have a mechanism to get that information, you just have to go through the steps first.”
“This was just a situation where it didn't warrant the employer taking special steps and, frankly, that's why they got called out on it,” he adds. “And for the North, the damages are pretty significant, as $20,000 is kind of the cap, so $5,000 is not incidental.”
See AA v. Inuvik Regional Hospital (Government of the Northwest Territories), 2024 CanLII 54015.
