17 May 2016

    When Can Your Boss Ask For Your Private Information?

    Privacy in the workplace can be a difficult issue to navigate. In particular, employers may request certain pieces of information for certain kinds of employee leaves. However, the Ontario Employment Standards Act, 2000 (the “Act”) allows for certain protections for employees. 

    There are ten types of leaves included in the Act. Nine of these leaves give a right to the employer to ask for the employee’s private information to ensure the leave is valid. The nature of the information varies based on the leave in question.

    Below are the most common leaves and an outline of what employers may only ask for of the employee. The general rule on privacy is that the employer may only ask for evidence for the leave that is reasonable in the circumstances.

    A pregnancy leave will give up to 17 weeks of unpaid time off, and the employee is to give a minimum of 2 weeks notice in advance. If the employer requests it, the employer may require a certificate or note from a medical practitioner regarding the due date of the baby. An employee may have a leave due to a complication in the pregnancy as well. In these cases, an employer can ask for a certificate confirming the employee is stopping work due to complications, which may include information such as the date of birth, or that there was a stillbirth or miscarriage.

    For a family medical leave, an employee may be provided up to eight weeks of unpaid time off to take care of a spouse, or parent, or other family member and the employer may ask for a certificate from a health practitioner that the family member has a serious medical condition with a serious risk of death within 26 weeks or a shorter period.

    A family caregiver may have up to eight weeks of unpaid time off in a calendar year. The employer may ask for a certificate from a medical practitioner that the family member has a serious medical condition, which may include a chronic or episodic condition.

    For an organ donor, the employee may have up to 13 weeks of unpaid time off. The employer can ask for a certificate from a medical practitioner that the employee has undergone or will undergo surgery for organ donation.

    Critical ill child care leave provides for 37 weeks in a 52-week period, where the employee is the one providing care and support. The employer can request a certificate from a medical practitioner that sets the period the child requires care and support. The employee must provide the employer with a written plan indicating the weeks he or she will take the leave.

    The personal emergency leave is the most contested type of leave and results most frequently in litigation. If the employee works in a company with 50 or more employees, then the employee has the right to obtain this leave. An employee is eligible for 10 days in each calendar year to personal illness, injury, medical emergency, death of a family member, or other urgent matters that concern the individual. Usually it is a medical personal emergency.

    Certain factors may determine what would be reasonable evidence for the personal emergency leave. For instance, if a basement is flooded, an employee may not need to provide much more beyond a photo showing this issue.

    Notably the employer has limitations to ask of the employee of information when it was a leave due to personal illness, injury or medical emergency. The employer is not allowed to require information about the diagnosis or treatment of the medical condition of the employee. Where the employee may reasonably be required to provide a doctor’s note, an employer may only ask for the duration of the absence, the date the employee was seen by the healthcare professional and whether the patient was examined by the person issuing the certificate.

    Where the leave was in relation to a relative, the employer is not allowed to require a medical note of the relative, or give details of the medical condition of the relative. The employer may only require the employee to disclose the name of the relative, the relationship of the relative to the employee, and to state the absence was required because of the relative’s injury, illness or medical injury.

    For employee leaves in relation to young offenders or the Youth Criminal Justice Act, the employee is not required to divulge the identity of the person or relationship of the person to the employee. Under the Youth Justice Criminal Act, it is prohibited to reveal information that a youth committed or was alleged to have committed a crime, was a victim of an event, or that a youth was testifying as a witness in a young offender proceeding.

    Finally, employers must consider issues in relation to the Ontario Human Rights Code. According to requirements under the Human Rights Code to accommodate employees with disabilities, the employer must limit their request for information of the employee to evaluate or respond to an accommodation request. Case law suggests that employers cannot simply ask for employees to undergo independent medical examinations unless there was a reasonable basis to question the accommodation that was requested.

    Understanding employer-employee leaves and the privacy rights of employees are complex questions. Readers should not make decisions based on this article alone, but should obtain specific legal advice. We would be happy to assist you with this request.

    Kj Chong also contributed to this article.

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    Walker Law Professional Corporation

    Tanya Walker obtained her law degree from Osgoode Hall at York University in 2005 and her Honours Bachelor of Commerce with a minor in Economics from McMaster University in 2002. She was called to the Ontario Bar in 2006 and created Walker Law a litigation law firm in 2010. Tanya is currently serving a term as Bencher of the Law Society of Ontario; elected by her peers as not only the first Black elected female Bencher from Toronto, in the 220-year history of the Law Society, but also as one of the youngest sitting Benchers.
 Tanya is a frequent speaker on legal issues to the Toronto Community and regularly appears on the CTV Show, Your Morning as a legal expert. She has also been named in the 2017 and 2018 Lexpert Guides as one of the Leading Lawyers to Watch in Corporate/Commercial Litigation and is also the recipient of the 2018 Women’s Business Enterprise of the Year Award.

 Tel: 647-342-2334 ext. 302 
 Email: tanya(at)tcwalkerlawyers.com


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