Arbitrator distinguishes Hooper, gives counsel direct access to disability management file

The Ontario law governing disability management and occupational health records is in disarray, though it did not stop an Ontario arbitrator from reaching the correct outcome in a decision released in November of last year. Arbitrator Colin Johnston held that neither the Personal Health Information Act nor the Occupational Health and Safety Act precluded a hospital from providing its disability management file to its legal counsel so counsel could review it for production purposes.

Although the right outcome, Arbitrator Johnston reached it through (understandably) conservative means, distinguishing the Orillia Soldiers’ Memorial Hospital case which precluded such a disclosure and the Divisional Court decision in Hooper. Further correction is required, as I argue here.

Health Sciences North v Ontario Nurses’ Association, 2022 CanLII 106545 (ON LA).

Consent form decision imposes strict transparency requirement for handling employee medical information

Disputes about employer medical information consent forms are now common. It’s not hard to pick apart a form, and employers tend to suffer “cuts and bruises.” In once such case an arbitrator has recently held that an employer must identify “anyone with whom the information would be shared” in a consent form. The arbitrator also held that an employer must subsequently (and seemingly proactively) give notice of who is handling information:

I agree with the employer that it is not practical to obtain a new consent every time a manager or HR Specialist who is absent is temporarily replaced. However, the employer must advise the employee of the employer’s need and intention to share health information with a replacement and identify that individual by name and title. This would enable the employee to revoke the consent if he/she does not wish the health information to be shared with the individual replacing the manager or HR Specialist. If and when it becomes necessary to share health information with HR or legal services in order to seek advice, or to obtain approval from senior management with delegated authority, the employee should be informed of the title or office only of the person with whom information will be shared. The employee’s consent would not be required for the employer to be able to do so.

While there’s no debating an employee’s right of control, the degree of transparency required here is very high and operationally challenging in the least. “Person-based consents” (as opposed to “purpose-based consents”) can also restrict important flows of information in subtle yet problematic ways.

The best argument against person-based consents is one that refers to the public policy that is reflected in the Personal Health Information and Protection Act (which does not govern employers acting as employers except via section 49). Even in the health care context – where the standard should be higher, not lower than in the employment context given the limited range of information processed by employers – consent is deemed to exist for a certain purpose and information can flow to any health care provider for that purpose. This is subject to a “lock box” that gives patients the ability to shield their information from specific individuals, but the lock box essentially functions as an opt out. (For the nuances of how PHIPA’s “circle of care” concept works, see here.) Transparency is satisfied by the publication of a “written public statement” (a policy really) that “provides a general description of the custodian’s information practices.” There’s no reason to require more of employers.

OPSEU and Ontario (Treasury Board Secretariat), Re, 2017 CarswellOnt 11994.

Case Report – Surdykowski speaks on medical forms for STD admin

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).