“Can We Talk About Your Health?” : Human Rights and the Duty to Inquire
Health information is sensitive. Very sensitive. And given the intimate nature of this information, the BC government has understandably put in place important protections to ensure the integrity of a person’s personal health information.
So considering the uniquely private nature of health information, is there ever a time when it would be appropriate for an employer to ask about an employee’s health? Under human rights law, there is.
Health Information and the Duty to Accommodate
The British Columbia Human Rights Code prohibits discrimination in the workplace on the basis of physical and mental disability. Human rights law also recognizes a duty for employers to accommodate persons with disabilities. Simple ways of accommodating disabilities, for example, may include modified work stations, reduced hours or a reassignment of some responsibilities.
If an employer is aware that an employee has a disability and may require accommodation, there is an onus on the employer to explore the availability of accommodation options. In these circumstances, an employer may need to contact the employee’s healthcare providers for an assessment of the employee’s limitations and to determine the extent to which the employee’s disability may restrict their ability to perform their job duties. In circumstances such as this, it would be entirely appropriate for an employer to request limited information about the individual’s health and limitations.
Health Information and the Duty to Inquire
Naturally, if there is a need for workplace accommodation, the employee presenting with the disability will normally be in the best position to communicate this need. However, human rights law also recognizes that in certain circumstances, employers have a duty to inquire into the health of an employee even if the employee hasn’t prompted them.
Where an employer has reason to suspect that a medical condition may be impacting the employee’s ability to work, our human rights tribunal has found that the employer must make inquiries into the employee’s health before taking steps that adversely affect the employee’s employment situation. This duty requires a delicate balance between respecting a person’s sensitive health information and an employer’s duty to investigate relevant accommodation information.
A good example of where the ‘duty to inquire’ may exist is with alcoholism or other addictions. Many disabilities, including addictions, carry with them significant stigma and shame, with denial forming a symptom of the illness. However, there are many signs of problem substance use, including an employee’s increasing lateness or absenteeism, a deterioration in personal health, declining productivity and fatigue. If an employee is presenting with indicators such as these but does not feel comfortable coming forward to their employer, there may be a duty on the employer to inquire into the person’s condition before taking any disciplinary action. In some cases, inquiring can be as simple as sitting the employee down and saying “We’ve noticed the following… What’s going on? Is there anything we need to know?”
Personal health information is clearly an important priority that deserves protection. Recognizing this, sometimes privacy rights can conflict with other obligations such as the duty to accommodate. In these circumstances, we recognize that employers are allowed to request limited health information to facilitate the employee’s participation in the workplace.