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Does an employee have a right to confidentiality and privacy of their medical information?
Employees have a right to confidentiality and privacy of their personal medical information, but these rights are not absolute.
Similarly, employers do not have an absolute right to require an employee to disclose confidential medical information, or the right to require an employee to submit to so-called an Independent Medical Assessment or Independent Psychological Assessment, without first exhausting less intrusive means. However, an employer is entitled to certain medical information that is reasonably required in the circumstances in accordance with the employer’s legitimate business interests.
As a result, employee’s interest to maintain confidentiality and privacy of their medical information is balanced against employer’s legitimate business interests for requesting the information. The following legal principles should be considered when balancing these two competing interests.
Employee’s right to confidentiality and privacy of medical information
Entering into an employment relationship is not an invitation for the employer to encroach upon the employee’s right to make their own medical decisions in privacy, without management’s interference: Victoria Times Herald, unreported (Feb. 12, 1986) (Hope).[1]
The employer is not a party to the employee-physician relationship.
Privacy is a core value of Canadian Society, which is reflected in the Canadian Charter of Rights and Freedoms,[2] provincial legislation, e.g., the Privacy Act,[3], and jurisprudence.[4] Section 1(1) of the BC Privacy Act makes a breach of one’s privacy a cause of action.[5]
In Hunter v Southam Inc.,[6] the Supreme Court of Canada (“the SCC”) recognized that a general right to privacy exists at common law, i.e., “the right to be let alone by other people”. The SCC held that the right to privacy is a right to be secure against encroachment upon the citizens’ reasonable expectation of privacy in a free and democratic society.
An employee’s right to privacy of their medical information is a value to be considered by arbitrators and properly reflected in arbitral law.[7]
Arbitrator Burkett in Re Trimac Transportation Services-Bulk Systems[8] recognized employee privacy as a core workplace value:
The recognition of employee privacy as a core workplace value, albeit one that is not absolute, has been recognized by arbitrators in awards dealing with searches, surveillance, medical examinations, and, more recently, drug testing…[9]
… Simply put, absent express language in the collective agreement, both the employee’s right to individual privacy… and the employer’s right to make rules for the purpose of furthering its business objectives… are accepted as legitimate and valued, albeit sometimes competing rights. In circumstances where these rights are competing, such that employees may be disciplined for noncompliance, resolution is achieved by weighing or balancing the competing impacts [our emphasis]. [10]
It has long been the case that an employer requires justification for privacy-intrusive measures. In 1988, Arbitrator Bird in the Canada Post Fingerprinting case expressed the principle as follows:
The right of privacy…is fundamental to any free society and should not be infringed upon by the employer in the absence of clear and unequivocal statutory authority, clear and unequivocal contractual language or by a clear and compelling inference to be drawn from the contractual language.[11]
One’s medical information is highly personal and confidential. An employee has a “special privacy interest” in relation to his personal medical information, which was articulated by Arbitrator Taylor in BCTF v. BCPSEA as follows:
There is a special privacy interest which attaches to medical information. The doctor-patient relationship is one of the most private and medical information and should receive no broader distribution than is reasonably necessary.[12]
Similarly, Arbitrator Dorsey concluded in USW, Local 7884 v Fording Coal Ltd. that confidentiality of medical records was a basic right to human dignity.
Confidentiality of medical records is a basic right to human dignity. Restoring and supporting dignity and the accompanying personal confidence is a therapeutic part of recovery, rehabilitation and adapting to life with a disability. Breaches of privacy may work against recovery.[13]
As Arbitrator Sims concluded in Peace Country,
…any employee consent should say quite explicitly to whom disclosure under a release may be made.[14]
In Grover, Justice Shore held that employees have a strong right to privacy with respect to their bodily integrity.[15]
It is unreasonable for an employer to make compulsory, completion of an employee consent to release of their medical information, as a pre-condition to sick leave benefits.
Requiring an employee to disclose their personal medical information to a third-party also engages the employee’s privacy interest. In Re NAV Canada v CATCA, Arbitrator Swan concluded as follows.
…medical information is intensely private and sensitive, and should receive no broader distribution than is reasonably necessary…even the release of medical information to third parties, even where those third parties are as apparently conscientious and careful about the security of that information as is MEDCAN, should not become a matter of ..It would not be a reasonable exercise of discretion … for there to be any general requirement for third party access to medical information.[16]
An employer has the right to ensure that an employee has recovered sufficiently and is fit to return to work after a prolonged absence due to illness or injury. While the employer is entitled to know whether the employee is “fit to work”, it is not typically entitled to know the diagnosis, treatment plan, DSM psychiatric diagnosis, and medications.
If the employee is able to return to work, but as a result of their disability requires an accommodation, the employer is entitled to know the restrictions and limitations imposed by the employee’s healthcare provider and whether those restrictions/limitations are temporary or permanent.
An employer requires reasonable and probable grounds to require an employee to undergo a medical and physical evaluation. Such a decision should not be undertaken lightly. In the absence of an express provision in the collective agreement, or statutory authority, an employer can only require an employee to submit to an examination by a doctor chosen by the employer if the company has reasonable and probable grounds for suspecting that the employee is a source of danger to himself, other employees, or company property; or is unfit to perform their duties.[17]
A medical practitioner commits a trespass if the employee is examined against their will.[18]
In Dartmouth, two weeks after the employees returned to work from sick leave, the employer required the employee to submit to a complete medical examination because was suspicious about the grievor’s use of sick leave. In accordance with the “work now, grieve later” rule, the employee submitted to the required medical examination. Upon finding that the employer’s suspicions did not satisfy the “reasonable and probable grounds” test, Arbitrator North upheld the grievance, directed the employer to rescind its directive requiring the grievor to submit to a medical examination, and to remove from the grievor’s personnel file any record of the improperly obtained medical information.
Where the Company has directed the employee to be absent from work to attend a medical evaluation required by the employer, the Company is not entitled to utilize the employee’s sick-leave entitlement, in the absence of express agreement.[19]
Employer’s entitlement to disclosure of reasonably necessary medical information
Employers have an obligation to ensure a safe worksite. Accordingly, employer has a right to know more about an employee’s medical information if there are reasonable and probable grounds to believe that the employee presents a risk to health and safety in the workplace.[20]
Before it is entitled to demand that employee submit to a medical examination by a healthcare provider, the employer must first explore other options to obtain the necessary information. The employer has a duty to clearly explain to employee the reasons why the medical information provided by the employee is insufficient. Only after the employer has exhausted all reasonable less intrusive means can employer insist that employee be assessed by a healthcare provider chosen by the employer.[21]
The requirement for an employee to be assessed by a healthcare provider chosen by the employer must be “necessary” due to a “legitimate doubt.” Such an examination is considered “drastic action” which as a “substantial basis” and only required in “rare cases.” The employer bears the onus to prove with “cogent evidence” that such a medical examination is necessary in the circumstances.[22]
The Employer must have “reasonable and probable” grounds for assuming the employee is in danger. Mere speculation or conjecture is insufficient. “An employer may not refuse to allow an employee to return to work on the mere possibility of medical problems in the future.”[23]
[1] Rosewood Manor v HEU, Local 180, 15 LAC (4th) 395, at ¶54; see also Hamilton Health Sciences v ONA (2007), 167 LAC (4th) 122 (Surdykowski), cited in City of Greater Sudbury v CUPE, Local 148 (2010), 197 LAC (4th) 123 (Kaplin), at pp. 127-128.
[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, ch. 11 (U.K.) (“the Charter”).
[3] Privacy Act, RSBC 1996, c. 373).
[4] Peace Country Health v United Nurses of Alberta (2007), 89 CLAS 107,[2007] AltaGAA 2007-015 (Sims), at ¶118-123 (“Peace Country”).
[5] Privacy Act, RSBC 1996, c. 373, s. 1.
[6] Hunter v Southam Inc., [1984] 2 SCR 145, 41 CR (3d) 97, at 159.
[7] Peace Country, supra, at ¶123.
[8] Trimac Transportation Services-Bulk Systems v Transportation Communications Union (1999), 88 LAC (4th) 237 (Burkett) [“Trimac”].
[9] Id., at 260.
[10] Id., at 269.
[11] Canada Post Corp. v CUPW, [1988] CarswellNat 876 (Can Arb Bd) (Bird), cited with approval in Irving Pulp & Paper Ltd. v CEP, Local 30 re Day (2009), 189 LAC (4th) 218, at 234, rev’d Irving Pulp & Paper Ltd. v CEP, Local 30 (2010), 2010 NBQB 294.
[12] BCTF v BCPSEA (2004), 79 CLAS 14, [2004] BCCAAA No 177 (BC; Taylor), at ¶24; cited in Accenture Business Services for Utilities v COPE, Local 378 (2008), 175 LAC (4th) 353 (Taylor) [“Accenture”], at ¶49.
[13] USW, Local 7884 v Fording Coal Ltd., 44 CLAS 171, [1996] BCCAAA No. 94, cited in Accenture, supra, at ¶50.
[14] Peace Country, supra, at ¶175.
[15] Attorney General (Canada) v Chandler Grover, 2007 FC 28, at ¶64 [Grover]; aff’d 2008 FCA 97.
[16] Re NAV Canada v CATCA (Medical Examinations) (1998), 74 LAC (4th) 163 (Canada; Swan), at p. 13; cited in Accenture, supra, at ¶48.
[17] Dartmouth General Hospital & Community Health Centre v CBRT&GW, Local 606 (1992), 30 LAC (4th) 116, at p. 120 and 125 (Re Dartmouth); Grover, supra, at ¶64.
[18] Grover, surpa, at ¶64.
[19] Extendicare Health Services Inc. (Fairview Villa) v CUPE, Local 1416 (1994), 43 LAC (4th) 201 (NS; Merrick), at 216-217.
[20] Grover, supra, at ¶65.
[21] Grover, supra, at ¶66.
[22] Grover, supra, at ¶70.
[23] Grover, supra, at ¶72.
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