On April 10th, the Alberta Office of the Information and Privacy Commissioner issued an investigation report that analyzed various information flows that employers typically use in managing employee medical issues.
The first information flow involved information transferred from a third-party Employee Assistance Program provider (EAP) to the employer’s occupational health services (OHS) department. The OIPC held the EAP improperly disclosed information to the OHS about whether the employee was complying with his treatment program. The disclosure itself was not objectionable because the employee was on leave and in receipt of short term disability benefits on the condition he obtain appropriate medical care. However, the employer and the EAP drew a distinction between voluntary entrance into the EAP and a formal referral into the EAP; voluntary care was treated as absolutely confidential while care pursuant to a referral involved a limited disclosure of information back to the OHS. The EAP argued that it had obtained oral consent for this disclosure, but the OIPC held the employee was rightly confused about the EAP’s role, partly because he had received EAP services voluntarily in the past. Hence, The OIPC held that the EAP violated its obligation to give reasonable notice of its purposes as required by the Alberta PIPA.
The second information flow involved information transferred from the employer’s OHS to a member of the employer’s human resources department (and also to the local union president). This information indicated that the employee:
- was involved in a “voluntary drug and alcohol program,”
- was being required by [the EAP] and apparently OHS to sign a Recovery Maintenance and Monitoring Contract,
- would be subject to requirements of “abstinence” and “random testing for alcohol and drugs” for a 2 year period,
- had been seeking counselling/treatment from [the EAP].
The OIPC held that it was okay for the employer’s OHS to know about the nature of the employee’s condition so it could ensure it was being properly managed, but all human resources needed to know was weather the employee had successfully completed treatment and would comply with return to work conditions.
The third information flow involved a communication sent by human resources that indicated the employee was not complying with the employer’s policies, that the OHS had given the employee notice of his requirements and the reason why the employee was not in compliance. The information was contained in a letter copied to:
- the local union president
- the employee’s immediate supervisor
- the employer’s director of disability management
- the employer’s director of operations
- the nurse who ran the employer’s OHS
- the employer’s site production manager
- the manager of the employee’s department
The OIPC held that the employee’s direct supervisor and the individuals responsible for administering the employer’s short term disability program had a need to know information about the ongoing employment-related dispute, but that the other members of management copied on the letter only needed to know that the employee was not yet eligible to return to work and should not be on-site.
This report provides some useful (and in my view fair) guidance to employers on the proper scope of some of the information flows that are necessary to the management of employee medical issues. I’m most interested in the OIPC’s treatment of the first information flow because it identifies the importance of clarifying the purposes for and conditions on employer-sponsored medical services. This case is about the subtle difference between visiting an employer-sponsored care provider under an absolute condition of confidentiality and a limited disclosure condition. It is reminiscent of the similar problem that arises when an OHS department provides care (for employees’ benefit) and assesses employees (for an employer’s benefit). Whenever an employer-sponsored care provider wears more than one hat, it’s important to let employees know which hat it is wearing in each and every engagement.