Last week I sat on a panel about privacy and the accommodation of disability. I sat opposite union counsel Andrew Astritis from Raven Cameron, and Emma Phillips of Goldblatt Partners moderated. Andrew and Emma both know privacy law well, and we had a fun, engaging and even balanced discussion! I’ve put my “paper” and speaking notes below.
On November 12th, Arbitrator Dorsey held that an employer could not implement universal “fitness for duty” testing.
The program would require drivers responsible for carrying liquid and compressed gas to be tested once every five years. The employer framed the testing as fitness for duty testing, but the program featured urinalysis and bloodwork to look for “disorders, including anemia, infection and leukemia.” In other words, the program looked (at least partly) rooted in the promotion of wellness, though requiring employees to participate in a wellness program with an (invasive) medical assessment feature is aggressive by Canadian standards, if not unprecedented.
Arbitrator Dorsey appeared to appreciate this problem, and decided the matter by finding that the particular collective agreement provision upon which the employer relied did not have the “clear and express language” necessary to authorize universal testing. He also said that truck transportation is not so safety sensitive an endeavour “regardless of the nature of the product being transported” to justify an exception to normal preference for individualized, for cause testing.
On August 7th, British Columbia labour arbitrator Julie Nichols issued a decision that addressed the discharge of an employee who refused to consent to an independent medical examination.
The decision is notable for two reasons.
First, the facts are common. The employee went off and provided medical evidence from a family physician that indicated he needed to change jobs on account of an “acute stress/anxiety reaction.” After receiving three communications from the family physician that were not helpful, the employer sought an IME based on a discretion set out in the collective agreement. Arbitrator Nichols held the employer acted reasonably in the circumstances because it had grounds to question whether the employee had “medicalized” a workplace issue.
Second, the award deals with the scope of information available to an IME provider. Arbitrator Nichols held that non-medical parties (employers, unions, employees) are not in a good position to determine the information needed to conduct an IME and that a reasonable IME process contemplates the collection of some extraneous information by the IME provider. The form at issue permitted the IME physician “to review copies of all medical and/or employment records related to my condition that will assist” and limited this permission by date range. Arbitrator Nichols held the form was reasonable.