© Copyright 2000 Rogers Media. The following article first appeared in the March 2001 edition of BENEFITS CANADA magazine.

Too much information

Employment medical examinations assess workers' health status. But there's not much that employers can do with this information.

By Kathryn Dorrell

"A recent trend among many employers has been to obtain employment medical assessments on their new hires . . . to prevent any future disability nightmares," says Dr. James Sears, chief executive officer of Second Opinion. "Within five years it will be normal practice to check a worker's past medical history in the same way that work history is checked today." Well, this certainly adds a new dimension to the concept of preventative healthcare that leaves plan sponsors on shaky ground.

While employers can conduct pre-employment medical exams, there are strict laws around how this information can be used. "There are significant legal protections for people's medical information and disabilities," says Craig Flood, a partner with Koskie Minsky in Toronto. "If anything, this protection is broadening."

The Ontario Human Rights Commission states that any such inquiries should be conducted after a conditional employment offer is made--preferably in writing--and only to determine the individual's ability to perform the essential duties of a job.

Several Quebec organizations learned a lesson about the fair use of medical information recently.

The City of Montreal and the City's Police Services Board refused to hire individuals as a gardener and a police officer, respectively, because pre-employment medical exams revealed both had spinal anomolies. In addition, the City of Broisbriand dismissed an individual because he had Crohn's disease. The Supreme Court of Canada concluded last year that there was nothing arising from any of these conditions that precluded the individuals from doing the jobs and that the employers' decisions were discriminatory.

"Under the law, the employer has to focus on whether an individual can do the essential duties of the job now," says Flood. "You can't decide not to hire someone because they have, say, HIV, and down the road could become a long-term disability case."

Entrop vs Imperial Oil is another example of how employers must use health information prudently. In this case, a recovered alcoholic was removed from a safety-sensitive position when he disclosed his past condition to comply with a company policy that requested health information for these positions. The Ontario Appeal Court ruled that the organization's action was a blanket response that was in fact discrimination, as there was no indication he would pose any threat, says Flood.

Checking a prospective or current employee's medical history is more common in the U.S. where there are "big, big dollars at stake because the company is paying the employee's whole health bill," says Jim Norton, senior vice-president of health strategies with Aon Consulting in Toronto. He adds that group insurance is designed to mitigate the risk that, inevitably, some employees will become ill and rely on benefits, while others won't.

Second Opinion's assessment of employment trends in Canada and recent cases here illustrate that domestic employers are indeed interested in the health status of their employees and its potential impact on their organization. But the courts' message is also loud and clear--misuse will not be tolerated.

Kathryn Dorrell is associate editor with BENEFITS CANADA.
kdorrell@rmpublishing.com.

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CONFERENCES

Healthcare and Insurance Plans: Design and Management
March 26 to 28, 2001, Toronto

An overview of health and welfare benefits with a focus on basic underwriting and funding issues. Visit www.worldatwork.org for more information.

The Romanow Commission has released its final report on the future of healthcare in Canada.

For Commissioner Romanow's recommendations, click here.

Click here for Senator Michael Kirby's report, "The Health of Canadians – The Federal Role: Recommendations for Reform."