On October 8th, Arbitrator Goodfellow partly allowed a grievance that challenged various ways in which an employer administered its sick leave program. In doing so, he held that:
- absent an express prohibition in a collective agreement, an employer is entitled use a third-party disability management administrator; and
- absent specific collective agreement authorization, an employer cannot deprive employees of sick pay pending proof of entitlement as a matter of routine.
Arbitrator Goodfellow also made the following statement on the application of Ontario PHIPA to employers:
We agree with the Employer that it is not bound by PHIPA in its relationship to its employees. Qua long-term care provider the Employer is a “health information custodian”; qua employer it is not: see e.g. City of Kingston and Canadian Union of Public Employees, Local 109, supra. The same is therefore true of Acclaim. PHIPA is aimed at health care providers, not employers. Neither of the cases referred to by the Union establish otherwise. While both discuss the statute, and while Sanofi Pasteur appears to accept its application, there is no indication that the matter was the subject of any submissions in those cases as it was here and in City of Kingston. Having said that, like those arbitrators, we would view the terms of PHIPA as reflecting the kinds of privacy interests to which the Employer may be held accountable under the terms of the collective agreement.
This is a helpful statement given the confusion in the case law to which Arbitrator Goodfellow refers.