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.

Privacy and accommodation of disability in Ontario

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.

Wellness be dammed – universal medical assessments not allowed

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.

Teamsters Local Union No 213 v Linde Canada Limited, 2015 CanLII 73757 (BC LA).

Arbitrator awards damages for substance abuse counsellor’s indiscretions

On June 15th, Arbitrator Michel Picher awarded damages to three employees for the indiscretions of a substance abuse counsellor retained by an employer to provide treatment as part of its substance abuse program. Arbitrator Picher:

  • awarded $5,000 to an employee because the counsellor disclosed his cancer diagnosis to the employer without justification and because the counsellor had counselling sessions with the employee in various public places (including Tim Hortons and Home Depot);
  • awarded $2,500 to an employee because the counsellor answered a telephone call and engaged in a discussion about “sensitive matters” while sitting with another employee (also a client); and
  • awarded $1,500 to the employee who overheard the telephone call because it “would undermine [his] expectation of privacy and confidentiality in communications with [the counsellor].”

The employer argued it hired a reputable provider and was unaware the serious allegations made agains the counsellor until after the union filed a grievance. Arbitrator Picher’s response reflects the approach taken in finding employers liable for workplace harassment (see Robichaud). He said, “The employer cannot disavow or escape responsibility for the actions of its chosen agent and must bear liability for any violation, in the course of his duties, of the rights of the employees in the bargaining unit for which he was responsible.”

Halifax Employers Assn. and ILA269 (2014-L-39), Re, 2015 CarswellOnt 10497.

Ontario arbitrator partly allows medical information management grievance

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.

Revera Long Term Care Inc (Stoneridge Manor) v Canadian Union of Public Employees, Local 2564, 2014 CanLII 58768 (ON LA).

Arbitrator orders damages for employer’s unauthorized call to personal doctor

On September 25th the Grievance Settlement Board ordered the province to pay $2,500 in damages for making an authorized call to an employee’s personal doctor. Vice-Chair Fisher based the award on the province’s failure to respond appropriately to the breach and evidence of mental distress:

However the Grievor is also entitled to a further remedy for this serious breach of the MOS. I am deeply troubled by the fact that Ministry apparently made no attempt to ascertain who in fact made this improper phone call. One would think that the Ministry would have some interest in trying to determine who in fact made such an inappropriate phone call, but apparently they did not.

The Grievor indicated that these series of events caused him distress and that he felt disgusted by the actions of the person whom made the call to his doctor without his consent. The Grievor is entitled to monetary damages for his distress. Although he did not receive any medical attention for this distress, it does not mean that his distress was not real.

The Union proved the call and not the identity of the caller, but the province did not take steps to rebut the inference that the call came from someone in its employ. The caller obtained information about appointments the grievor had attended from a medical secretary who was subsequently reprimanded for her breach.

Ontario Public Service Employees Union (Spicer) v Ontario (Labour), 2013 CanLII 72580 (ON GSB).

Case Report – Order to attend assessment following employee’s aggressive outburst not discriminatory

Yesterday, the Court of Appeal for the Yukon Territory affirmed a decision of a Yukon Human Rights Board of Adjudication. The Board had held that an employer did not discriminate against an employee with a bipolar condition by suspending him pending a medical assessment. It held that the employer ordered the assessment based on an observation of objectively concerning behavior rather than on any stereotypical assumptions about the employee’s disability:

Whether Mr. March’s conduct was disruptive and inappropriate or not was a question of fact. The evidentiary facts were largely undisputed and the primary task of the Board was to resolve the conflicting interpretations and decide whether Mr. March’s conduct was disruptive and inappropriate. The issue involved an individualized assessment of particular facts. The Board heard the evidence and concluded that Mr. March’s conduct was disruptive and inappropriate and the respondents acted reasonably in the circumstances in removing him from the workplace pending a medical assessment. The action taken was temporary and responsive to the disruptive conduct and not an arbitrary reaction attributable to a discriminatory stereotyping of his disability. Instead, it was directed to ascertaining the cause of his conduct, and deciding how it should be addressed.

Though employers do have a general right to request medical information in circumstances similar to those demonstrated in this case, the employer here had accommodated the employee for years and further helped its case by making a genuine expression of continued support for the employee at the same time as making its direction.

March v. Yukon (Human Rights Board of Adjudication), 2010 YKCA 3.

Case Report – Divisional Court says reasons for ordering medical exam required

On June 3rd, the Divisional Court quashed a medical assessment order issued by the Ontario College of Nurses because the College did not provide the affected nurse with reasons for its order.

In accordance with the Health Professions Procedural Code, the College’s Executive Committee appointed a board of inquiry to assess the nurse’s capacity. The board of inquiry gave notice to the nurse of its intention to order her to submit to a medical examination (on the threat of suspension) because it had reasonable and probable grounds to believe she was incapacitated. The power to make this order is specified in the Code, as is the requirement to give notice.

The nurse made submissions through counsel, and included two medical opinions and statements from her colleagues that supported her capacity. Regardless, the board ordered an assessment and did not provide reasons for its order. The court award also says the College “refused” to provide the nurse with a record of its proceedings or file the record with the Court, though it did file an Affidavit in its response which attached all the material before it at the time it made its decision.

The Court quashed the order because the College breached the nurse’s right to procedural fairness. It considered that the privacy interest at stake weighed in favour of a high standard, and commented:

Individuals have a legal right to bodily integrity and medical privacy. The right is protected through privacy legislation and through an extensive body of case law dealing with circumstances under which an individual can be compelled to submit to medical examinations and other intrusions on bodily integrity.

The College submits Ms. Cotton had no reasonable legitimate expectation that the Board would give reasons for its decision. It states it has never been the practice at the College for a Board of Inquiry to provide reasons demonstrating reasonable and probable grounds to require a member to submit to a medical examination. We respectfully suggest that the College might wish to re-examine its practice where a medical examination is ordered.

The College further submits that a duty to give reasons is inconsistent with the role of the Board, which was performing a purely investigative function rather than an adjudicative one. We recognize that there may be functions of the Board that are investigative and which are not determinative of the rights of any party. However, an order requiring a person to undergo an invasive medical examination, subject to the penalty of suspension or revocation of licence for refusing to comply, is a determination of rights, even though it may be ordered for an investigative purpose. It is in this context that the duty to observe rules of procedural fairness, including the duty to provide reasons, arises.

Though the substantive basis for ordering a medical assessment is often litigated, judicial comment on the process of ordering an assessment is rare. The outcome in this decision is certainly driven by its specific factual context, but it nonetheless has some broader significance.

Cotton v. College of Nurses of Ontario, 2008 CanLII 26674 (ON S.C.J.).

Case Report – Alberta OIPC issues helpful medical information management decision

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.

Investigation Report P2008-IR-003 (10 April 2008, Alberta OIPC).

Case Report – Leak of information side-tracks STD adjudication claim

On January 31, Arbitrator Devlin upheld a grievance which claimed an improper denial of short-term disability benefits and awarded $5,000 for the manner in which the employer (together with its third-party adjudicator) denied the benefit.

The main problem with the benefits decision was that it relied on a finding that the grievor was not eligible because her condition (an episode of siutational depression) was caused by her husband’s terminal illness.  The grievor gave this information to the employer in an informal telephone conversation at the start of her absence, and the employer forwarded it to the adjudicator in an “employee profile” form.  Ms. Devlin found the underlying reason for the grievor’s absence was not a relevant factor in the claim, which was otherwise justified.  She held that there was evidence the improper denial caused the grievor additional stress and awarded $5,000 in damages.

Hamilton Health Sciences and Ontario Nurses Association (Re), [2008] O.L.A.A. No. 103 (Devlin).