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).

Case Report – Use of diagnostic information and employer medical advisers

On August 20th, the Alberta Office of the Information and Privacy Commissioner dismissed a complaint in which an employee alleged an invasion of privacy because his employer reported his medical restrictions to the Alberta Infrastructure and Transportation’s Driver Fitness and Monitoring Branch.

The employee, who was required to drive as part of his job, submitted a letter from his psychologist in support of a leave request. The letter indicated he was unsafe to drive and included detailed information about his mental condition. The employer granted the leave and asked the psychologist whether he had reported the employee’s restriction to the province. When the doctor declined to answer the employer’s request for information, the employer reported the restriction itself and included a copy of the psychologist’s letter. The province ended up placing several monitoring conditions on the employee’s license.

In deciding that the report complied with both the Alberta Personal Information Protection Act and the Alberta Freedom of Information and Protection of Privacy Act, the IPC made several findings of technical significance. For example, it read the exception in section 20(c) of PIPA broadly in finding the employer’s non-consensual disclosure was permissible. Of broader significance, however, are the IPC’s obiter comments on the employer’s collection of diagnostic information. While implying that diagnostic information may sometimes be needed by an employer or insurer to support decision-making, it endorsed the use of medical advisers as playing a role in protecting employee privacy:

Diagnostic information should only be provided directly to the employer’s group insurer who is responsible for evaluating an employee’s eligibility for any benefits where applicable. An exception to this practice would be organizations with in-house health units staffed by qualified medical practitioners, who may reasonably receive this information provided it is kept in strict confidence. These units manage workplace injuries, accidents and safety which are governed by workers’ compensation and occupational health and safety requirements. In such cases, collection of diagnostic information by an employer may be reasonable.

It is true that employer medical advisers play an important role in employee privacy. By taking custody of medical information on behalf of employers, they are the means by which employers ensure proper, limited use of the information. For more about an adviser’s role and some thoughts on reconciling this role with the adviser’s contractual duty to the employer, see my earlier post, Medical information management for employers.

Investigation Report P2007-IR-005 F2007-IR-004 (20 August 2007, Alberta I.P.C.).