Canada Employment and Immigration Union - http://ceiu-seic.ca/en/collective-agreement-interpretation/when-can-the-employer-ask-for-an-independent-medical-examination/
February 14, 2006

When can the employer ask for an independent medical examination?

Your medical privacy is an important right that is worthy of respect, both inside the workplace and out. An independent medical examination (IME) involves a medical assessment by a physician other than your own, often by a doctor chosen by management. The employer can order an IME, but only in certain circumstances. For stewards and members, it is critical to know when such requests are legitimate – and when not.

A recent grievance adjudication decision helps to explore the issues surrounding IME’s. The Grover decision (2005 PSLRB 150) is complex, but essentially it involves the refusal of an employee to submit to an IME and the disciplinary actions taken in response.

The grievor was the Director of the Radiation and Optics section of Institute of National Measurements Standards (INMS) at the National Research Council of Canada (NRC). He had presented three medical certificates to support his use of sick leave and it was in response to the last certificate that the employer ordered him to attend an independent medical examination (IME). The employer claimed it needed to determine if he was fit to work 50% of his usual hours, the portion the grievor’s physician had prescribed.

The grievor refused to submit to the IME, saying that he was

"…not prepared to consent to this assessment, as I have not been provided with sufficient information to understand the reason for this request or to determine whether the physician whom NRC has chosen is independent."

In response, the employer suspended the grievor for five days (the employer later rescinded the suspension). It considered the refusal to attend the IME to be insubordination. In addition, it placed the grievor in a "no work, no pay" situation which was a key issue before the adjudicator in this case.

Employer’s position

In support of its case, the employer argued that its request for the IME was legitimate, and pointed to the NRC’s Occupational Health and Safety Policy:

6.13.2 b) While the Occupational Health Monitoring Policy is for the benefit of employees, and is voluntary, it does not limit NRC’s right to require a medical where necessary under the Canada Labour Code, Part II or under other NRC policies, such as the Policy on Self-Contained Breathing Apparatus. Also, when there is evidence sufficient for management to be concerned over the ability of employees to perform their jobs without creating a safety risk to themselves or others, including the potential for damage to physical property, management has not only the right but also the obligation to require a medical assessment of the employee in order to determine whether the employee’s health is sufficient to continue to undertake the work. An employee may be denied access to the work place until management is satisfied the employee can perform the duties in a safe manner.

Grievor’s position

The grievor responded by arguing that the authority of the employer to request an IME was not the issue. The employer clearly had the authority, but can exercise it only if there are sufficient grounds for doing so. In this case, the grievor maintained, there were no such grounds.

Adjudicator’s decision

The adjudicator agreed with the grievor. Pointing to the failure of the employer to provide evidence sufficient for management to be concerned over the ability of Dr. Grover to perform his job without creating a safety risk to himself or others, the adjudicator concluded that the employer did not have sufficient reasons to request the IME.

The adjudicator also found the employer’s decision to place Dr. Grover in a "no work, no pay" situation amounted to discipline. The employer had claimed its decision was merely "administrative", rather than disciplinary, in nature. Since there was no reasonable justification for the IME request, it followed that there was no basis for the discipline taken because of the grievor’s refusal of the request. As a result, the grievor was reinstated with full retroactive entitlement to salary and benefits.

Particularly useful for stewards and members are the general remarks of the adjudicator. She comments:

Furthermore, the request for an independent medical examination to determine fitness to work should be considered only in exceptional and clear circumstances. The justification for it should also be fully disclosed to the employee (Canadian Labour Arbitration, 3rd Edition, 7:6142).

She also refers favourably to an earlier adjudication decision by the Public Service Staff Relations Board on IME’s (Campbell), and emphasizes the test that management must meet:

An employer who has serious reasons to believe that the physical or mental condition of an employee is such that the employee cannot adequately perform the duties of his or her position, or who has reason to believe that the condition of the employee may affect the health and security of others, may require that the employee submit to a physical or psychiatric medical examination by a specialist of its choice…

Conclusion

IME’s are about the balance between privacy and the employer’s legitimate right to operate safely and effectively. But to tip that balance in favour of an IME, the employer must show that it has serious reasons for requesting one. IME’s should be used only in exceptional and clear circumstances and the basis for requesting them must be fully disclosed to the employee concerned.

Stewards dealing with IME cases can review both the full text of the Grover decision as well as the decision summary. Additional help is available from the CEIU office responsible for your local.

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