SPECIAL NOTE:
Full-Time Service Members at Providence Healthcare are now enrolled in HOODIP.

HOODIP is the Insurance Provider for our Sick Pay Benefits and Long Term Disability (LTD) benefits. Please note that all Full-Time CUPE 5441 members are eligible for these benefits.

The Ontario Hospital Association (OHA) established the Disability Income Plan in 1976 to provide uniform disability income benefits for employees of Participating Employers. The Plan provides two periods of benefits: Sick Pay Benefits and Long Term Disability. These cover the periods before and after the disability benefits paid by the Canada Employment Insurance Commission. This brochure describes the 1992 Sick Pay benefit provided by your employer. If you need more information about your coverage, contact your Human Resources Department.

The Ontario Hospital Association (OHA) established the Disability Income Plan in 1976 to provide uniform disability income benefits for employees of Participating Employers. This brochure describes the 1992 Long Term Disability (LTD) benefit. The benefit is insured by Desjardins Financial Security Life Assurance Company (DFS). The information in this brochure is only a summary of some of the provisions of the master insurance policy. If you need more information about your coverage, contact your Human Resources Department or call DFS at 1-800-263-1810.

Under the full-time CUPE/OCHU central agreement, full-time CUPE hospital workers are entitled to paid leave for illness and disability. Article 13 of the central agreement deals with sick leave, injury and disability. This members’ guide has been produced to provide you with an overview of the sick pay benefits and long-term disability plans that make up HOODIP (“Hospitals of Ontario Disability Income Plan”). The information in the text boxes in this guide are relevant excerpts from the CUPE/OCHU central agreement.

 

8. Duty to accommodate

Under the Code, employers and unions, housing providers and service providers have a legal duty to accommodate the needs of people with disabilities who are adversely affected by a requirement, rule or standard. Accommodation is necessary to ensure that people with disabilities have equal opportunities, access and benefits. Employment, housing, services and facilities should be designed inclusively and must be adapted to accommodate the needs of a person with a disability in a way that promotes integration and full participation.

 

The point below is in reference to when the Employer asks the worker for medical information.

 

8.7 Medical information to be provided

The provision of medical information by people with disabilities – the type, the scope and to whom – has implications for the privacy of employees, tenants and service users.[220] At the same time, organizations must have enough information to allow them to meet their duty to accommodate.

As stated above, the person seeking accommodation is generally required to advise the accommodation provider that they have a disability, and the accommodation provider is required to take requests for accommodation in good faith.[221] A person with a disability does not have to meet an onerous standard for initially communicating that a disability exists to trigger the organization’s duty to accommodate. Organizations should limit requests for information to those reasonably related to the nature of the limitation or restriction, to assess needs and make the accommodation.

The type of information that accommodation seekers may generally be expected to provide to support an accommodation includes:

  • that the person has a disability
  • the limitations or needs associated with the disability
  • whether the person can perform the essential duties or requirements of the job[222], of being a tenant, or of being a service user, with or without accommodation
  • the type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job, of being a tenant, or of being a service user, etc.
  • in employment, regular updates about when the person expects to come back to work, if they are on leave.

Example: A tenant tells his landlord that he has been hospitalized due to a disability and cannot make his rent payment on time. Knowing that the person is in hospital, the landlord does not require confirmation that the tenant has a disability, but asks for information to indicate that his need is temporary in nature, and that he will be able to pay his rent once released in a few weeks’ time. The person provides this information, and the landlord makes an allowance for the late payment.

Example: In one case, a housing co-op sought to evict an occupant for failing to perform the two hours of volunteer work each month required by the co-op’s by-law, despite the fact that she had provided a doctor’s note that she was incapable of performing the volunteer work for medical reasons. Even with the note, the co-op sought further medical details of her condition, which she refused to provide. The Ontario Divisional Court stated that the co-op had a duty to respect the rights of its occupants under the Ontario Human Rights Code and to accommodate the needs of an occupant with a disability, to the point of undue hardship.[223]

Where there is a reasonable basis to question the legitimacy of a person’s request for accommodation or the adequacy of the information provided, the accommodation provider may request confirmation or additional information from a qualified health care professional to get the needed information.

Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy while still giving the accommodation provider enough information to make the accommodation.

In the rare case where an accommodation provider can show that it legitimately needs more information about the person’s disability to make the accommodation (as opposed to just the needs related to the disability), it could ask for the nature of the person’s illness, condition or disability[224] (for example, is it a mental health disability, a physical disability, a learning disability?), as opposed to a medical diagnosis.

Organizations are not expected to diagnose illness or “second-guess” the health status of a person with a disability. An accommodation provider is not entitled to substitute its own opinion for that of medical documentation provided by a doctor.[225] Similarly, an organization must not ask for more confidential medical information than necessary because it doubts the person’s disclosure of their disability based on its own impressionistic view of what a specific disability should “look like.”[226]

Example: An employee tells his manager that he has Crohn’s Disease and requests time off work to recover from an upcoming surgery related to his condition. Although the employee provides medical documentation from his family doctor stating that he has a disability for which he will require 4 – 6 weeks off to recover from surgery, his manager questions the legitimacy of the request, saying “I have no one to replace you, and besides, my uncle has had Crohn’s Disease for years and he has never had to have surgery.” He insists on the employee providing confirmation from his surgeon as well before he will consider providing the requested accommodation. This could be a violation of the employee’s rights under the Code.

Generally, the accommodation provider does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment,[227] unless these clearly relate to the accommodation being sought, or the person’s needs are complex, challenging or unclear and more information is needed.[228] In rare situations where a person’s accommodation needs are complex, challenging or unclear, the person may be asked to co-operate by providing more information, up to and including a diagnosis.[229] In such situations, the accommodation provider must be able to clearly justify why the information is needed.

However, wherever possible, an accommodation provider must make genuine efforts to provide needed accommodations without requiring a person to disclose a diagnosis, or otherwise provide medical information that is not absolutely necessary.

Example: A woman living with HIV provides medical verification that she has a disability to her university’s office for students with disabilities. The office helps her to set up a schedule that avoids early morning classes, due to the insomnia and fatigue she experiences as a side effect of her medication. Neither the office nor the woman’s professors need to know the exact nature of her disability to make this accommodation.

Where someone’s needs are unclear, they may be asked to attend an independent medical examination (IME). However, there must be an objective basis for concluding that the initial medical evidence provided is inaccurate or inadequate. The IME should not be used to “second-guess” a person’s request for accommodation.[230] Requests for medical examinations must be warranted, take into account a person’s particular disability-related needs, and respect individual privacy to the greatest extent possible.[231]

Example: A woman is employed as a railroad engineer, which is a “safety sensitive” position. After being hospitalized for a serious concussion resulting from a car accident, she is cleared by her doctor to go back to work. However, upon returning, she is evaluated and her supervisor notices that she cannot focus well, her reaction time is slow, and she makes repeated mistakes. In this case, the employer may be justified in asking the employee to attend an independent medical examination.[232]  

No one can be made to attend an independent medical examination, but failure to respond to reasonable requests may delay the accommodation until such information is provided, and may ultimately frustrate the accommodation process.

Mere assertions of symptoms, such as statements that the person experiences “stress,” “pain” or “feels unwell” – things that many people commonly experience – may not be enough to establish a disability within the meaning and protection of human rights legislation.[233] If choosing to disclose such information in writing, individuals and doctors should make it clear that these symptoms relate to a disability.

Example: A man provides a doctor’s note to his employer stating that he has been feeling “under the weather” and needs a leave of absence. The employer is entitled to ask for more information to ascertain whether his condition is linked to a disability. If it is, the employer may ask about the person’s restrictions, the expected date of return to work, and whether or not the person could still be present at work with an accommodation.

However, where these types of assertions exist alongside other indicators that the person is experiencing health problems, and where an employer, housing provider or service provider perceives that a person may have a disability, the Code’s protection will be triggered.

Where a person provides disability-related information that an accommodation provider deems “insufficient” to enable it to provide accommodation, the accommodation provider cannot use its own failure to ask for additional information to deny the accommodation or to otherwise subject a person to negative treatment (for example, termination of employment, denial of service, etc.).[234]

If the person does not agree to provide additional medical information, and the accommodation provider can show that this information is needed, it may be the case that the person seeking accommodation could be found to not have taken part in the accommodation process and the accommodation provider would likely be relieved of further responsibility.[235]

In some cases, there may be conflicting information provided by two medical experts. For example, a person’s own doctor or specialist may outline different accommodation needs than an independent medical examiner’s report. Deciding which report to follow will depend on the facts of the particular situation and certain factors, such as which expert has more relevant experience, the degree of interaction with the person, and the methods used for the assessment(s), among others.[236]