Employee privacy vs. employer's need to know whether employee is living up to last-chance agreement
Question: An employee must attend counselling after a harassment incident and keep the employer notified of his progress. Failure to do so could result in dismissal. Can the employer do its own checking up to see if the employee is following through or would it be a privacy violation?
Answer: While it is not clear from the question itself what authority ordered the employee to attend the counselling, it does appear that the circumstances surrounding it are similar to a “last chance agreement.” “Last chance agreements” are a type of settlement agreement whereby the employer agrees not to terminate an employee for serious misconduct in exchange for the imposition of stipulated conditions the employee must meet to continue in her employment. Generally speaking, such agreements will be enforced according to the employer’s terms, provided that those terms are not contrary to any legislation, such as human rights statutes. For example, the agreement must be consistent with the employer’s duty to accommodate any disability to the point of undue hardship.
It is perhaps best to approach this problem from the point of view that the employer is entitled to the information regarding the progress of the counselling treatment as a condition of the continued employment of this particular employee, provided that this is consistent with the terms of the order. If that information is not provided, or if the employee does not attend the required counselling, then the employer may be entitled to terminate the employment or to impose other discipline.
The counselling records and related treatment information would be seen as the employee’s private and personal information. In the absence of the employee’s consent, the counsellor would most likely refuse to share it with the employee, which would be justifiable. The best approach is to ask the employee directly for the information, and to ask her to include confirmation from the counsellor of the dates of counselling sessions as well. It would also be reasonable to impose a deadline for the provision of the requested information, to maintain an orderly process.
