To IME or not to IME, this is the question
In the recent decision of Bottiglia v. Ottawa Catholic School Board 2015 HRTO 1178, the Ontario Human Rights Tribunal (“OHRT”) addressed the issue of when it would be reasonable for an employer to request an Independent Medical Exam (“IME”) from an employee during the accommodation process. The OHRT ruled that an employer request for an IME will be justified when it was “reasonable” in the circumstances of creating an individualized accommodation plan.
In this case the Applicant was off work for two years on a disability leave. In February of 2012, the Applicant’s doctor stated he could not return to work and would be off for a prolonged amount of time. In June of 2012, the Applicant’s doctor confirmed that returning the Applicant to work may cause a relapse. Then in August of 2012, the Applicant’s doctor appeared to completely change his mind and said that the Applicant could return to work on a limited basis in the next month or two and subject to restrictions that the Respondent found unusual in similar cases.
The Respondent was perplexed by the inconsistent medical and the accommodation plan submitted by the Applicant’s doctor so it ordered the Applicant to undergo an IME. In fact, counsel for the Respondent accused the Applicant’s doctor of acting as a non-objective advocate for his client.
In the subsequent hearing which addressed whether the accommodation and the request for an IME was appropriate, the Applicant said that before the Respondent could order an IME it should have first consulted with his family physician, it should have ensured it had a contractual right to the IME and it should have followed its own policies which required the human resources department to explore the medical issue first before an IME was undertaken.
The HRTO rejected the Applicant’s submissions and made the following comments on the employer’s decision to order the IME:
- The HRTO held that given the inconsistent nature of the Applicant’s doctor’s medical evidence and the accommodation plan, the Respondent had a bona fide reason to question the adequacy and reliability of the information the applicant had provided and the proposed accommodation.
- The HRTO said that while consulting with the Applicant’s family doctor first was an option, it was not always mandatory because there were sufficient reasons to question the adequacy and reliability of the information submitted by the Applicant’s doctor.
- The HRTO held that the guidelines authorizing IME’s were applicable to the Applicant and the Respondent should follow its own policies but it was not bound by a mechanical process in deciding when an IME was warranted. Rather, the Respondent was expressly authorized to take an individual view to accommodation to determine when an IME would be required which means it could deviate from its policies.
- The HRTO emphasized that when it was reasonable to do so based on the individual facts of an accommodation case, the employer could request an IME so that it could satisfy its obligations under the Human Rights Code and the duty to accommodate. In this case, it was reasonable given the inconsistent medical submitted by the family doctor.
This is an important case for employers and employees. It provides that when the medical evidence is not clear and difficulties have arisen on constructing a proper accommodation plan, an employer may request an IME so long as it was reasonable to do so to meet its obligation sunder the Human Rights Code. Employers will not necessarily be bound by policies or protocols. Rather, the guiding principle will be “reasonableness”.
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