Employees objected to corporation's requirement for medical diagnosis on sick leave certificates

PIPEDA Case Summary #2003-257

[Principle 4.4, Schedule 1]

Complaint

A number of individuals complained that their employer, a corporation involved in transportation-related services, required a medical diagnosis to be included on their doctors' certificates for sick leave absences.

Summary of Investigation

The complainants worked in high-risk, safety-sensitive positions. Company policy required them to provide a medical certificate for any sick leave that exceeded the five days of annual uncertified leave allowed by the corporation. The certificate, which was to be submitted to the occupational health nurse, had to include a medical diagnosis.

The employees acknowledged that their employer had the right to inquire, upon their return to work, whether they had been under a doctor's care and what restrictions, including any medications they might be taking, might prevent them from doing their jobs safely. However, they felt that supplying a medical diagnosis was excessive. They also felt that their employer was unreasonable to require such a diagnosis as a condition of payment for their sick leave credits.

The employer cited two reasons for requiring a medical diagnosis. The first was the safety-sensitive nature of the complainants' work and their "at risk" positions. According to the employer's sick leave policy, "at risk" employees are required to provide information on medical certificates that includes:

• a medical diagnosis
• a list of treatments received, including prescribed medications that might affect the employee's ability to work safely; and
• information about functional limitations.

The corporation explained that a medical diagnosis is required for such employees since they often work long shifts in isolation and undertake duties demanding a combination of strength, agility and attention. It maintained that in many cases, an employee's physician is not aware of the nature of his or her job, whereas an occupational health nurse is better able to judge whether it is safe for the employee to return to regular duties. The organization provided no evidence that it used diagnostic information extensively for such a purpose.

The second reason for requiring a medical diagnosis concerned "suspicious absences." The corporation reserved the right to demand a medical certificate, including a diagnosis, from any employee who had taken sick leave immediately prior to or following vacation leave or during a period when the company had previously refused to allow time off. In some of these cases, the complainants' past record of leave-taking was deemed to be suspicious by the employer.

Further to discussions with this Office, however, the organization stated that it would no longer require employees to submit a medical certificate for suspicious absences. It also expressed a willingness to examine the requirement for specific medical diagnoses for "at risk" employees.

Commissioner's Findings

Issued in Fall 2003

Jurisdiction: As of January 1, 2001, the Personal Information Protection and Electronic Documents Act (the Act) applies to any federal work, undertaking or business. The Commissioner had jurisdiction in this case because the organization in question is a federal work, undertaking or business as defined in the Act.

Application: Principle 4.4 states that the collection of personal information must be limited to that which is necessary for the purposes identified by the organization.

The corporation had two stated purposes for collecting medical diagnoses from the complainants:

1. To verify their fitness for work in designated safety-sensitive positions after an absence exceeding their annual allowed uncertified sick leave; and
2. To verify, in circumstances deemed to be suspicious, whether the absences were due to genuine illness.

This Office has long recognized that an employer has both the right to satisfy itself that an employee's absence from work is justified and the obligation to determine whether an employee returning to work after sick leave is fit to resume assigned duties or must be otherwise accommodated. This Office also recognizes that, in order to fulfil the above purposes, it may be necessary to collect an employee's personal medical information. The question to be considered was how much information is enough in a given set of circumstances?

The Commissioner deliberated as follows:

• It was entirely appropriate and reasonable for the organization to require medical certificates when the employees' absences exceeded the allowable limit for uncertified sick leave.
• However, the word of the employees' physicians should have been sufficient. The corporation was entitled to request and receive certification that the complainants were ill, but, as the organization itself has acknowledged, it is not necessary to require employees to provide diagnostic information in cases of suspicious absences.
• The organization did not demonstrate to this Office's satisfaction that it needed to inquire into the nature of the complainants' illnesses in order to ensure their fitness to resume their regular duties.
• Although such a purpose is legitimate and diagnostic information may in some circumstances be necessary to its fulfilment, it was both unnecessary and inappropriate for the organization to have demanded medical diagnoses in the circumstances of these cases.

The Commissioner therefore found that the organization had contravened Principle 4.4.

He concluded that the complaints were well-founded.

Further Considerations

The Commissioner made the following recommendations:

• The organization should drop its requirement for mandatory inclusion of diagnoses in the medical certificates of employees designated "at risk" and henceforth limit its collection of employees' diagnostic information to cases of clear necessity in the fulfilment of legitimate purposes. The corporation should amend its sick leave policy accordingly.
• The organization should revisit its decision to deny medical leave to individuals who refused to provide a medical diagnosis.