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Nov 22, 2010

Don’t ask, don’t tell, don’t work

When privacy restrictions interfere with running the workplace efficiently
    

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

The employment relationship involves some reliance by each side on the other for various things.

The employer enters into it with the expectation the employee will perform the duties required of the position, not cause problems in the workplace and not do anything to harm the employer’s reputation.

The employee expects to be paid, have a safe work environment and fair management.

When an employment relationship is entered into, the employee must also usually provide some personal information, such as contact numbers, social insurance number, address and bank information. In providing this information, the employee expects the employer will guard it and not disclose it without consent.

But where is the line as to what is personal employee information? What can an employer disclose in the context of its business? This question came up recently in Alberta when that province’s Office of the Information and Privacy Commissioner addressed a complaint from an employee who was suspended for a positive drug test at work.

After the positive test result, the employer’s health and safety officer met with the employee and his foreman and informed the supervisor and general manager the employee was being suspended. The supervisor and general manager then told others who worked with the employee he would be absent from work. At no point did they say why.

The adjudicator agreed that disclosing the fact the employee was suspended was reasonable because the people they disclosed the information to needed to know in the context of their jobs, but the adjudicator found the employer still didn’t have the authority to disclose the information because it hadn’t provided reasonable notification to the employee for consent.

It’s understandable employees should be told and their consent requested if their personal information is going to be disclosed, but how far backwards does an employer have to bend? If the information is directly related to the job and certain people in the workplace need to know immediately, is it necessary?

In the Alberta case above, there was nothing specific about why the employee wasn’t available nor any mention of the positive drug test; management just told individuals who were affected by the employee’s absence the minimum information they needed. Should things have been held up so the employee could be properly informed and asked for consent to disclose the information? Was the employee really harmed and his privacy violated by the disclosure of the fact he was absent?

The adjudicator in the above case acknowledged that, when an employee fails a drug test and must be removed from his duties, the time frame can be short for the employer to make arrangements. But the adjudicator also ruled the employer should have formally notified the employee before those arrangements were made. Privacy is important in the employment relationship and personal employee information must be protected, but is the bar too high when it comes to defining what information should be protected when it can be an obstacle to the efficient running of the business?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

    
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