Recently, bakerlaw has come across the issue of the relationship between employers and insurers in regards to disability claims and accommodation. It is well established that an employer bears the duty to accommodate the disability-related needs of an employee. In these cases, the issues between the insurer and employer can be kept separate and distinct. For example, the employer’s duty to accommodate the employee may be separate from the insurer’s duty to not discriminate against the employee in his or her application for a short or long term disability claim.

However, the relationship between employer and insurer becomes complicated when the employer relies on the insurer’s assessment of the employee’s restrictions and limitations. This reliance makes the insurer an agent of the employer and as such, the insurer is required to accommodate the employee to the point of undue hardship. This relationship also complicates the issues regarding the circumstances in which an employee can be made to undergo an independent medical examination (IME). Generally, an employer can only request such an assessment in very narrow circumstances whereas insurers typically have a broader range of circumstances in which an IME can be requested. Given this discrepancy, when the insurer is effectively the agent of the employer, it is difficult to know under what circumstances the IME can be legitimately ordered. This also gives rise to a potential conflict of interest with employers inappropriately acting in both the roles of employer and insurer when accommodating disability-related needs.

For more information on the human rights issues regarding the relationship between the employer and insurer, see David Baker’s (bakerlaw) and Erin Hallock’s (formerly of bakerlaw) paper on the issues here (link to paper).