Where Employee Privacy is Not Paramount; the Employee’s Duty to Share Information in the Accommodation Process

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Article2023 | 06 | 06

Where Employee Privacy is Not Paramount; the Employee's Duty to Share Information in the Accommodation Process

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In Wearmouth v West Fraser LVL, 2021 AHRC 203 (Alberta Human Rights Commission) the employer, West Fraser LVL operated a laminated veneer lumber plant which was a safety-sensitive work site. The plant operated 24 hours per day, 7 days a week.

The complainant started employment with West Fraser as a spare board employee in the beam and header department; this being the only department that had 11-hour daytime shifts only, Monday to Friday. During this time the complainant began to experience symptoms of a mental disability and sought treatment, but did not inform the employer.

The complainant was subsequently reassigned to the dryer department which (like the rest of the lumber plant) included 12-hour shifts on a rotating shift schedule including afternoon and night shifts. The next day the complainant provided a simple medical note to her employer stating “it would be beneficial for her to work fixed daytime hours.” Although the employer initially accepted this note and temporarily accommodated the complainant in the beam and header department, it advised her that it would need further medical information including the extent of her medical restrictions.

Approximately one month later, the complainant provided a physician’s form to West Fraser which provided the following statement: “Because of medications (can cause drowsiness if shift is irregular) should work only dayshift or only night but limited crossover.”

The employer expressed immediate concern that the complainant’s medications could cause drowsiness in the safety-sensitive work site and sent her home. Furthermore, the employer determined that there was not enough medical information to explain or justify the medical accommodation being sought regarding daytime shifts and that the limited information provided by the complainant pointed solely to her preferred accommodation. Accordingly, West Fraser discontinued her temporary accommodation in the beam and header department with 11-hour daytime shifts.

The employer requested additional detailed medical information from the complainant so it could consider an accommodation in this case. The complainant provided some short medical notes but these notes never explained her restrictions and made accommodation difficult at best. She continued to press for a transfer back to the beam and header department. The employer continued to request further and better medical information, a standoff ensued and she filed a complaint with the Human Rights Tribunal of Alberta.

At the hearing, the complainant argued West Fraser had not established it would be an undue hardship to accommodate her in the beam and header department. The employer argued the complainant provided inadequate information to address the accommodation question.

The Human Rights Tribunal of Alberta ruled that the complainant failed to provide adequate medical information to allow the employer to consider accommodation options. Without reasonably necessary medical information, it was impossible to accommodate the complainant without imposing undue hardship on the employer.

Importantly, in this case, the Tribunal weighed the complainant’s right to privacy with the employer’s need to review her medical information to consider accommodation options and concluded that the employee’s privacy is secondary if they want to be accommodated. Paragraph 40 of the decision provided as follows:

40     Privacy is a core value of our legal system and medical information is some of the most private of personal information. This is why the cases generally do not impose a duty to disclose a specific diagnosis and limit employers from seeking more medical information than is reasonably necessary. However, an employer needs to understand the extent of the medical restrictions to allow it to assess the accommodation options available. The arbitration board in Complex Services observed:

It is apparent that the grievor is very protective of her private and confidential medical information. There is nothing wrong with that. However, the grievor appears to believe that her right to privacy in that respect is absolute, and that the employer should be satisfied with the information she has consented to release with respect to her alleged mental illness disability. No right to privacy, including the right to privacy with respect to confidential medical information, is absolute. Although an employee who seeks accommodation…is a necessary and important participant in the disclosure process, she is not the sole or final arbiter of what is reasonably required and must be produced in that respect. An employee who does not seek accommodation…is free to refuse to disclose confidential medical information. However, exercising that choice may have other employment consequences, including a legitimate refusal by the employer to allow the employee to continue or return to work. An employer is entitled, indeed required, to be satisfied that an employee who seeks to return to work after an illness or injury can do so safely, with appropriate accommodation if required.

The Tribunal ultimately held that without the additional medical information assessing accommodation options and implementing reasonable accommodation was impossible.

The Human Rights Tribunal of Alberta also recognized the complainant’s unwavering demand to be put in the beam and header department with its 11-hour daytime shifts; simply put, she would only accept her preferred accommodation or perfect accommodation. The Tribunal rejected this approach in paragraphs 30 and 31 of the decision:

In Renaud, the Supreme Court of Canada highlighted that while I complainant has a duty to cooperate in the accommodation process, the employer is responsible for finding accommodation options that best work with its operations:

While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business.

Courts and tribunals have consistently held that a complainant is not entitled to dictate the terms of accommodation. In Callan v. Suncor, the Alberta Court of Appeal explained:

There is no duty of instant or perfect accommodation, only reasonable accommodation. The reasonableness of the employer’s accommodation must be evaluated by considering the knowledge of the employer, together with the cost, complexity and expense of any physical accommodation required and other similar factors. The test is not subjective, and the employee is not entitled to dictate the accommodation he or she will accept. Nor is the employer required to accept the complainant’s own subjective assessment of his or her abilities.

Accordingly, the complaint was dismissed.

Employer Takeaways

Accommodation is a two-way street and employees like employers have their own set of obligations.

An employee’s obligation in the accommodation process includes participating in reasonable proposals for accommodation made by the employer.

Employees cannot demand “perfect” accommodation, or insist on their preferred form of accommodation. They have an obligation to accept an offer of accommodation made by an employer, provided that the employer’s offer is objectively reasonable.  Where an employee declines a reasonable offer of accommodation, the employer has discharged its duty to accommodate.

Furthermore, the employee cannot demand accommodation, but decline to provide the medical information necessary for the employer to consider accommodation options. An employee’s privacy is secondary if they want to be accommodated.

To read the first instalment in Timothy J. Lach’s accommodation process series, click here.

DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

If you would like legal advice, kindly contact the author(s) directly or the firm's Chief Operating Officer at pknapp@tmlawyers.com, or 204.988.0356.

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About the Author
Timothy Lach
Timothy J. Lach