Citing contract provisions governing medical assessments for workers returning to work following an injury and arguing a compelling interest in reducing the toll of workplace injuries, an employer sought to justify its unilateral imposition of a disability management program.
A key feature of the program required workers to attend an occupational health clinic contracted by the employer immediately following a workplace injury.
The union grieved the policy calling it an unwarranted intrusion on worker privacy and a violation of statutory protections that allow a worker to choose his or her own doctor.
The employer claimed that return-to-work provisions in the collective agreement gave it substantial rights to designate a doctor or chiropractor and that these rights were not limited to the point at which a worker was about to return to work but were applicable more broadly to cover circumstances where an employee was “away from work” due to an injury.
Special expertise
The policy was part of an overall strategy to reduce workplace injuries and time lost to injuries, the employer said. It was also efficacious. The clinic contracted by the employer had special expertise in workplace injuries, detailed knowledge of the particular jobs at the workplace and access to prompt diagnostics and treatments.
The assessments at the clinic were focused on workplace injuries only and were far less intrusive than a full medical examination. Given that employees were not prevented from seeing their own physicians, the employer argued that any loss of privacy in the circumstances was outweighed by the contract language and the legitimate interests of the policy.
The contract provisions in question were only applicable to return-to-work situations and could not be used to compel employees to see a doctor chosen by the company, the union said. There was no compelling need for the specialized clinic because strains and sprains — the most common injuries at the workplace — were well within the competence of most family doctors. The policy violated fundamental employee privacy rights and could not prevail, the union said.
Unreasonable intrusion
The Arbitrator agreed, ruling that “requiring employees to be assessed upon injury by a physician at a clinic chosen by the Employer is an unreasonable intrusion on employee privacy that cannot be justified either by circumstances or the collective agreement.”
“It is clear on the face of the policy that the injured employee’s attendance at the [clinic] is neither voluntary nor optional … Compelling injured employees, as a generalized requirement, to immediately attend the [clinic] for examination by a [clinic] doctor is inconsistent with consent,” the Arbitrator said.
The Arbitrator accepted that the employer was motivated by legitimate business interests and that the clinic it contracted may have been capable of providing superior treatment. However, the Arbitrator said, “These legitimate employer interests are outweighed by employee rights to medical privacy. The jurisprudence is overwhelming that valid business objectives and good intentions are insufficient justification to intrude on an employee’s medical privacy absent compelling individual circumstances to support such intrusion.”
Notwithstanding that the employer may have been motivated to implement a program that it felt was beneficial to both parties, this was a case where an employer policy “overreaches what an employer is entitled to insist upon doing.”
Certainly there was no contractual basis for such an intrusion, the Arbitrator said. The language in the collective agreement was directed at situations where assessments were required before returning injured workers to their pre-injury jobs in order to determine whether or not accommodations or modified duties were necessary. If the parties had intended to empower the employer generally to designate a physician to assess injured employees, the contract would have made that clear in straightforward language. It did not.
While ruling that the employer’s policy was unenforceable, the Arbitrator said that the decision did not prevent the employer from making attendance at the clinic available to employees on a voluntary basis.
Moreover, the ruling did not preclude the employer from ever requiring employees to attend the clinic or be assessed by a physician of its choosing. However, the Arbitrator said, protocols must be followed and the individual circumstances of each case must be dealt with appropriately following a philosophy of “minimal impairment” to individual privacy.
