Information about your health is among the most sensitive types of personal information. Yet your employer might need such information to manage you and to meet its duties to accommodate your disabilities and to protect other workers and the workplace. How is the balance struck? 

A great deal of the rules and principles in this area have developed in the context of labour arbitrations between unionized employees and employers. The balancing is done on the basis of what information is reasonable for the employer to collect in the particular circumstances of the case. In general, the more that is required of the employer, and the greater the risk to the employee and other workers, the more personal health information the employer may be entitled to. 

So for example, it is generally not considered reasonable to automatically require a doctor’s note from all employees for every sick day. But if you were returning to work after a short-term disability leave, the employer may reasonably require a certificate stating that you were fit to return to work or may, depending on the circumstances, reasonably seek more detailed information about your abilities.

If you are receiving benefits, your employer may be entitled to more information. If the job is safety-sensitive, more health information may be necessary. And at the far end of the spectrum is the duty to accommodate, in which your employer has a duty to inquire and inform itself about your disability, so that it can fulfil its duty to accommodate you. (1)

In each case, you can refuse to consent to give your personal health information to your employer, but there may be reasonable consequences, such as being held out of service, not being accommodated, or even, in certain limited circumstances, being disciplined.

While each case will be decided on its specific facts, the following sections discuss some general principles for how your right to privacy may be balanced against your employer’s need for your health information.

Medical Examinations

In general your employer is not permitted to compel or force you to provide information about your medical condition or compel attendance at a medical examination, but

  1. Your employer may be permitted or required to put you on paid or unpaid leave (but not impose discipline) if it cannot obtain sufficient information to ensure a safe return to work after a disability leave;
  2. A collective agreement or a law or regulation may give your employer limited rights to require you to see a particular doctor or provide certain types of medical information. If you refuse in these circumstances, you could be subject to discipline, depending on the language of the collective agreement, or law or regulation; (2)
  3. Where there are reasonable grounds, your employer could ask you to undergo a medical exam, but less privacy intrusive means to obtain the information should be tried first. Examples of “reasonable grounds” include the following: when the job is safety-sensitive; (3) where your reinstatement is contingent on an independent medical assessment; where specific information is necessary to administer a benefits program or to establish entitlement to benefits; (4) or where the available information is insufficient to answer legitimate and relevant questions. (5)

The employer may collect only what is reasonable for the purpose and what is reasonable will change depending on the purpose. 

  1. Your employer may require you to provide a doctor’s note for a sick day(s) if it is reasonable in the particular circumstances to do so, such as, if the collective agreement deals with the issue; the employer has a reasonable policy on the issue; there is excessive absenteeism, or there is suspicion as to your truthfulness;
  2. An employer may require you to provide a certificate specifying that you are fit to return to work after a short-term disability leave, especially if the employer is concerned about your safety or the safety of other workers. (6) The employer could require you to give the doctor a job description or demands analysis to ensure the doctor understands the actual tasks when assessing your fitness to return to work;
  3. When the employer has a duty to accommodate your disability, it is reasonable for the employer to collect more information because it has a legal duty to inquire and inform itself about all relevant information about the disability, including your current medical condition, prognosis, ability to perform current duties and/or any alternative work. (7) 
  4. Detailed information about your specific cognitive or physical limitations may be justified, but your employer should seek such information only after less privacy-invasive inquires have failed to provide the necessary level of knowledge required for it to meet its duties. 

The employer must limit the collection to the minimum amount of information that is necessary for the purpose:

  1. Routine questionnaires or forms containing broad general questions can be unreasonable, especially when the forms are required to be completed by an employee’s doctor, as broader questions can prompt a doctor to provide more information than is necessary for the employer’s purpose. (8) 
  2. Less information is necessary if less is required of the employer: for example in a return to work situation, information about your diagnosis is generally not necessary but specific information about abilities and disabilities will address the need to know what you can actually do. (9)  
  3. Information about your diagnosis may be necessary in cases of long-term disability claims, or where a duty to accommodate is triggered, or where the health and safety of other workers could be affected. (10) 

Security is very important. Personal information should be protected so that only those other employees and managers who need to know the information may see it.   

  1. It is best practice to ensure that employee health information is generally held in a file that is kept physically separate from the general employee file that contains review and discipline information.  Only those other employees who have a reasonable need to know the information should be able to see it.
  2. Even if a human resources department is given your health information, it may not be necessary to provide that information to your manager, who may have a need to know only the specific information about your return to work date, your impairments or requirements for accommodation.
  3. Employers with in-house occupational health and safety departments must ensure that health information is retained locally in that department with strict access controls to ensure the information is kept confidential.  

(1) Employers have a duty to accommodate an employee’s disability up to the point that accommodating the employee puts an undue hardship on the employer. 

(2) See for example Canadian Merchant Service Guild v. Ocean Construction Supplies Ltd. (2005), 140 L.A.C. (4th) 257;  But see Grover v. National Research Council of Canada [2005] PSLRB 150, available at; appeal dismissed

(3) See for example PIPEDA Case Summary #287

(4) See for example PIPEDA Case Summary #118

(5) See for example Ontario Nurses’ Association v. St. Joseph’s Health Centre, 2005 CanLII 24239 (ON S.C.D.C.); and see PIPEDA Case Summary #118

(6) Ontario Nurses’ Association v. St. Joseph’s Health Centre, 2005 CanLII 24239 (ON S.C.D.C.)

(7) Fendick v. Lakes District Maintenance Ltd.  [2005] B.C.H.R.T.D. No. 573 (QL); see also Ontario Public Service Employees Union v. Ontario (Ministry of Children and Youth Services), 2006 CanLII 17669 (ON G.S.B.)

(8) See for example Communications, Energy and Paperworkers Union of Canada Local 49 v. West Coast Energy Inc. [2004] C.L.A.D. No 504 (QL)

(9) West Coast Energy, above.  See also PIPEDA Case Summaries #233, #235, #257

(10) See for example Canadian Union of Postal Workers v. Canada Post Corp. [2004] C.L.A.D. No. 310 (QL)