By Myrna El Fakhry Tuttle
Reposted from LawNow 43(4) with permission.
Requesting medical information from employees may raise privacy issues. Employees have the right to keep their medical information confidential and private. But employers also have the right to know about their employees’ illness or disability, and have the right to seek medical information in order to provide appropriate accommodation. So, how can we balance the two?
In Alberta, the Freedom of Information and Protection of Privacy Act (FOIP) section 17 provides that the disclosure of some personal information, including medical information, is presumed to be an unreasonable invasion of privacy. Without consent, such information would only be released in exceptional circumstances.
Section 3 of the Personal Information Protection Act (PIPA) covers the collection, use, and disclosure of personal information. PIPA balances an individual’s right to have his or her personal information protected, and an organization’s need to collect, use or disclose personal information for purposes that are reasonable. Under PIPA, while you may need to collect, use and disclose certain personal information, you must, according to privacy legislation, explain the reason for collecting the information and how it may be used or disclosed (see: A Guide for Businesses and Organizations on the Personal Information Protection Act).
The Health Information Act also governs the disclosure of health information in Part 5.
An employee’s personal medical information is generally acknowledged to be private and confidential. However, it is well established (and should be obvious) that an employer is entitled to access sufficient information for legitimate purposes. This includes assurance that the employee is able to continue or return to work, or to provide necessary appropriate accommodation to ensure that the employee can work without jeopardizing his or her safety, or that of other employees. An employer is entitled only to the least such information necessary for the purpose and an employee should generally not be required to disclose their medical files, or even diagnosis or treatment. However, exactly what is required will depend on the circumstances and purpose – and may very well include diagnosis, or treatment, or other information (Complex Services Inc v Ontario Public Service Employees Union, Local 278, 2012 CanLII 8645 (ON LA) at para 84)..
Employers may seek medical information in a variety of circumstances, including to support:
a request for short-term sick leave;
extended sick leave, or partial medical leave;
an application for benefits;
a request to return to work; or
a request for accommodation (see: Devins, Jewell & Sartison, Medical Information in the Accommodation Process, (December 2013)).
An employer has a legitimate interest in seeking information related to employee’s prognosis and ability to attend work on a regular basis. The employer is entitled to request that the employee provide medical information and then to consider what, if any, impact the information had on its duty to accommodate the employee in the workplace. There is nothing inherently discriminatory for an employer to request a doctor’s note from employees to substantiate a request for sick leave (Stewart v Brewers Distributor and another, 2009 BCHRT 376 at para 48).
The Human Rights Tribunal of Ontario stated that an employee who seeks workplace accommodation has a duty to cooperate in the accommodation process by providing his or her employer with a reasonable amount of information about their physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship (Bottiglia v Ottawa Catholic School Board, 2015 HRTO 1178 (CanLII) at para 99, affirmed 2017 ONSC 1517 (CanLII)).
The duty to accommodate requires persons seeking accommodation to make available to their employer such details of their medical circumstances as are necessary to prove the disability and to design and achieve the accommodation. In some cases, this can include diagnosis or treatment information, but each case depends upon its own circumstances (Peace Country Health v United Nurses of Alberta, 2007 CanLII 80624 (AB GAA)).
The duty to accommodate extends to employees who use medical marijuana, supported by a medical certificate, in the workplace. Can employers remove employees who use medical marijuana from safety-sensitive positions? In Calgary (City) v Canadian Union of Public Employees, the arbitration board stated that if there was no evidence that the grievor’s use of marijuana for medical purposes had any impact on his or her ability to perform safety-sensitive duties in a safe manner, then the employer cannot transfer the grievor to a non-safety-sensitive position (Calgary (City) v Canadian Union of Public Employees (Cupe 37), 2015 CanLII 61756 (AB GAA)). However, an employer who terminated an employee working in the logging industry for smoking marijuana without having a medical authorization to lawfully possess and use marijuana for medical purposes and without informing his employer, did not discriminate against its employee (French v Selkin Logging, 2015 BCHRT 101 (CanLII)).
In the purely technical sense of the term, an employee has an “absolute” right to keep their confidential medical information private. But if the employee exercises that right in a way that thwarts the employer’s exercise of its legitimate rights or obligations, or makes it impossible for the employer to provide appropriate necessary accommodation, there are likely to be consequences. This is because an employee has no right to sick leave benefits or accommodation unless the employee provides sufficient reliable evidence to establish that they are entitled to benefits, or that they have a disability that actually requires accommodation and the accommodation required. Although an employer cannot discipline an employee for refusing to disclose confidential medical information, the employee may be denied sick benefits, or it may be appropriate for the employer to refuse to allow the employee to continue or return to work until necessary such information is provided (Complex Services Inc. at para 86).
In certain circumstances, the procedural aspect of an employer’s duty to accommodate will permit, or even require, the employer to ask for a second medical opinion where the employer had a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert. An employer is not entitled to request an Independent Medical Examination (IME) in an effort to second-guess an employee’s medical expert. An employer is only entitled to request that an employee undergo an IME where the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate (Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (CanLII) at paras 76-77).
However, employers need to have the employee’s authorization in order to collect and use personal information. Thus, an employer cannot contact an employee’s doctor without the consent of the employee. There is nothing in the mere existence of an employment relationship that gives the employer any inherent right to compel its employees to compromise their legitimate right to keep personal medical information confidential. An employer only has a right to an employee’s confidential medical information to the extent that legislation or a collective agreement or other contract of employment specifically so provides, or that is demonstrably required and permitted by law for the particular purpose. Except where required or permitted by law, an employer cannot seek and a doctor cannot give out any patient medical information without the patient’s freely given informed specific authorization and consent (Hamilton Health Sciences v Ontario Nurses’ Association, 2007 CanLII 73923 (ONLA) at para 21).
In addition, there are some restrictions on the employers’ right to seek medical information. Employers are not allowed to use and disclose the medical information that they receive any way they want. The improper disclosure of the employee’s medical information can constitute a breach of PIPA. An employer discussing an employee’s medical information with other employees is inappropriate. Employees who have disclosed their medical information in order to be accommodated have the right to confidentiality. Medical information that they share with their employer should be kept private, unless they give their consent to the employer to disclose the information. Within the workplace, those who need access might include the employee, the employee’s supervisor and other staff handling accounting, payroll, deductions, benefits or related issues (see: An Employer’s Guide to Employment Rules).
Employees have the right to keep their medical information private. But in order to be accommodated in the workplace, they are required to provide relevant medical information. Employers have a duty to accommodate employees to the point of undue hardship, therefore they have a right to seek medical information when necessary.