Sharing Personal Medical Information – Employee’s Rights and Obligations [video]

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What are the circumstances in which the employee is required to share personal medical information with the employer? What is the extent of the sharing of personal medical information? These basic concepts are addressed in this lecture.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Machine Transcription:

Welcome everyone, this is Amer Mustaq from You Counsel. Today, we’ll talk about some of the circumstances in which you may be required to share your medical information with your employer if you’re an employee, or if you are an employer what are the circumstances in which you can ask your employees to disclose their personal medical information, and what is the extent of that sharing?

We’ll begin with a disclaimer that this course is not legal advice, so, if you have any specific questions you should contact a lawyer or a paralegal.

We’ll begin with the key principle and will use this key principle so that it may be easy for you to remember the key concepts of this lecture. And what I want you to sort of carry, and it’s said in the loose terms, but the employer does not have a right to the diagnosis, but may have a potential right to the prognosis. And we’ll talk about these terms but I think it’s generally easy to remember that no right to diagnosis, and maybe some right to prognosis of your medical circumstances.

So we’ll discuss you know what your privacy rights are with respect to your personal medical information. We’ll talk about how the diagnosis and prognosis the terms I’ve used, how do they relate to the sharing of personal medical information. So fundamentally what you want to remember is that your medical information is private and confidential, you are by default not required to share your personal medical information with anyone else. But there may be circumstances in which your personal medical circumstances may intersect with your employment duties. They may have an impact on how you can perform your duties, when you can perform your duties, and to what extent. And that’s a situation where in that intersection gives rise to certain rights that employer may have, to obtain certain medical information to manage its own business.

So, employer’s rights to your medical information are limited and they’re limited to the extent that the employer needs to manage its workforce, that’s an employer’s fundamental right, and the employer has a right to manage its own business. So in that context if you come to the employer and say that your performance of duties is limited because of certain medical circumstances, the employer has a right to understand what is the impact of that medical situation on its business so that they can properly get their business you know continued and have the duties performed. So I can give you an example, let’s say if you were a factory worker and your job, or one of your jobs, was to lift items and put them on shelves. And let’s say you end up having a back injury which limits you to lift the items, for instance if the doctor says that you should not be lifting any items that are heavier than 20 pounds, there may be additional restrictions that you may have to sit every so often, every hour or so you may have to lie down for certain time, or you may have to use special chairs or a special table while you perform your duties. So all of these things, all of these limitations, may have an impact on your duties. And in that context the employer has a right to understand what is the impact.

So, one example is the employer has a right to know that from today onwards you are not able to lift anything that is more than 20 pounds, and if there are items that are heavier, then the employer has to figure out who in the workforce will be able to do that task if not you. And if the employer needs to hire somebody temporarily or full time then they’ll have to do that in order to accommodate your circumstances. The employer also needs to know whether the extent of this limitation is temporary or permanent, is it going to last only for a few weeks or is it something that you can never do again. The employer also needs to understand what kind of breaks you need to take so that if there is additional work that needs to be completed then they have to manage all of that. So those are some of the circumstances in which the employer has a right to understand what is the impact of your medical circumstances so it’s what can manage its own business.

With respect to the employer’s duty to accommodate we have a separate lecture on that and you should review that if you’re not clear about what are your rights and obligations with respect to accommodation. So as I said there are limited circumstances in which you are required to provide your medical information. Now as I said there’s a difference between diagnosis and prognosis, so the employer does not have a right to say, “what is it that is causing you not to perform your duties?” So you know the nature of illness, the exact diagnosis, is something that you are not required to disclose and you shouldn’t disclose. What the employer needs to know is what are the limitations so that they can manage its own business.

Now, you also want to keep in mind that when you share that information, even that portion of medical information that you are sharing, the sharing is limited. It is not given out to the entire company, it is shared with H.R. and depending upon the nature of limitations it may or may not be shared with your manager. So in some circumstances it may be appropriate to share with your managers because the manager has to get the job done and so manager has to have some understanding of those limitations, but the sharing of that information is not shared with your colleagues, it’s not shared with anyone else, essentially it’s to the employer to their H.R. department so that they can understand how to rearrange their resources and get the work done while you’re not able to do that job or you’re not able to fully do that job.

So, what you want to remember in this process is that this exchange of information generally becomes a dialogue between you, the employee, and the employer, and how it’s done is that let’s say there is a medical circumstances that gives rise to some limitation, you get your doctor’s note saying that Employee So and So is not able to lift certain items above 20 pounds, and then that letter goes to the employer and then the employer may have some additional questions right. So what is the length of this restriction, are you able to lift anything at all, what if we change your duties to something else? The employer is trying to think about how to manage its work and so they may have additional questions, so they’ll come back to you with those additional questions and then you obtain the response to those questions from your physicians or if you have an understanding yourself then you respond to that. And so in this dialogue at some point there is clarity to the employer that how is your medical circumstance impacting its business, and then in that limited context the information is shared so the employer can manage its business.

Now, there is something that is not a topic for today but I wanted to mention it as call Independent Medical Examination. In some circumstances the employer may ask you to go to another doctor, another physician for an Independent Medical Examination and this is sort of a way for the employer to confirm that you have the limitations or restrictions that you are claiming that you have and also get a better understanding of how the those limitations impact its work. Independent Medical Examination sometimes is allowed, sometimes it’s not, and so it’s a separate topic we’ll cover it in a separate lecture.

Hopefully, you now have at least an understanding of what are your rights as an employee with respect to your medical circumstances, when they impact your employment. Please share with us your comments and questions and we’ll be happy to address those and thank you for watching, we’ll see you in the next lecture.

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