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Privacy and work – What Can and Can’t Your Employer Ask About You?

Whitten and Lublin | Dec 03, 2018

An employee has an expectation of privacy, but all this is within reasonable limits. What an employer is entitled to know and ask will vary according to the situation. In general, if circumstances are impacting an employee’s duties, an employer has a right to inquire as much as reasonably necessary so that the impact is rectified or mitigated. Many times, human rights grounds will be in play, which means an employer would also need the necessary information for workplace accommodation. However, there are limits to how much an employer may ask. Information that would not be needed for accommodation purposes or that has no impact on an employee’s duties should remain the privacy of the employee.

To illustrate, take a common example if illness. Suppose an employee’s job duties, consisting of light clerical duties, are impacted by fatigue caused by anemia (low red blood cell count). And suppose that the anemia is caused by a chronic disease. Here, the employer would be required to accommodate the employee up to ‘undue’ hardship, and therefore entitled to the information necessary to make an accommodation that allows an employee to perform the essential duties of the job. In this instance, the employer would need to know that the employee suffers from fatigue and the limitations this imposes on the employee’s ability to perform their job duties. The employer here would not be required to know that the employee suffers from anemia nor the cause of the anemia (ie. the diagnosis of the chronic disease causing the anemia). The proper procedure would be for the employer to inform the physician of the required job duties, which would enable the physician to provide the employer with the needed information, while also protecting the employee’s privacy.

Further, an employer here can rightfully ask for a prognosis. This may include a timeline of when the employee is expected to improve or make a full recovery. In more rare instances, an employer may also be entitled to seek an independent medical examination (IME). Again, the employer may only receive information necessary for accommodation purposes, and the IME may only be requested for the purposes of accommodation, and not as an attempt to invalidate a medical practitioner’s prognosis.

If faced with such a scenario as an employee, seek the assistance of an employment lawyer so that your privacy and job are protected to the fullest.

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