On October 5th of last year, Ontario Arbitrator Surdykowsky made some broad statements in upholding a grievance which challenged a standard medical information form administered for the purpose of adjudicating short term disability benefits.
The form was administered by the employer’s third-party adjudicator in all applications for STD benefits. It included a consent to collect information from any “party” involved in treatment and requested, among other information, primary and secondary diagnoses, medical history, information on tests and investigations performed and specific information on program of treatment.
Mr. Surdykowsky held that the standard for eligibility in the employer’s STD plans (there were two different ones at issue) did not justify collection of this information for the purpose of adjudication. One plan, for example, simply specified that employees must submit a satisfactory medical certificate showing an inability to perform regular job duties. Mr. Surdykowsky held that the employer was limited to asking for a certificate focused directly on the eligibility requirement unless there was an objectively reasonable basis for doubting the accuracy or truth of the health care provider’s certification.
Mr. Sudykowsky also engaged in a very principled analysis of an employer’s right to medical information. He held that employee privacy rights cannot be outweighed by expediency or efficiency, so even though the collection of further and more detailed medical information may be justified as an absence becomes prolonged and attendance management and accommodation processes become engaged, such information should not be routinely collected at the beginning of an absence on a form that is administered strictly for the purpose of determining benefit eligibility. And while recognizing that broader requests for medical information up front may actually reduce conflict given that health professionals are not “always entirely objective,” Mr. Surdykowski held that employee privacy rights weigh against a departure from a strict necessity requirement.
As part of his broad analysis, Mr. Surdykowski also endorsed the following general principles (in my words):
- A union can bargain the scope of a medical information request form on behalf of its members. An individual may chose not to consent but may be denied benefits. An employer does not act coercively by informing an employee of the potential negative repercussions of failing to consent to disclosure of all information on the form.
- When collecting information for the purpose of adjudicating short term disability benefits or approving a short term medical leave, employers are normally restricted to collecting a certification of disability, the general nature of the illness or injury (which is different from diagnostic information), that the employee has and is following a treatment plan (but not the plan itself), the expected return to work date, and what work the employee can or cannot do.
- Medical consents should generally authorize disclosure from a specific health care provider. They should not authorize contact between the employer or its agent and the health care provider in a manner that cuts the employee out of the “medical information loop” and, more generally, should not authorize the disclosure of information generated course of future care.
While this is a decision based on specific and relatively restrictive collective agreement language, Mr. Surdykowski’s fully-reasoned decision (which is based on 20 days of hearing) may be authoritative and conflicts with fairly standard employer practices. Unionized employers should consider it and reflect upon their short term disability or sick leave administration practices, their medical consent forms and their collective agreement and benefit plan language.
Importantly, the Surdykowski award is only about the information an employer may request for the purpose of adjudicating short term disability benefits. Although he comments peripherally on employers’ need for information in the accommodation process, to the extent an employer has a need for more fulsome information to provide accommodation or to develop a plan for safely returning an employee to work, it may be justified in seeking further and more detailed medical information. Based on the reasoning in the Surdykowski award, such requests should be tailored as much as possible to meet the need in any given case.
Re Hamilton Health Sciences and Ontario Nurses Association, 91 C.L.A.S. 228 (Surdykowski).