Despite the clause in the collective agreement that entitled the employer to medical information it needed to assess disability and return-to-work claims, it went too far. The information it demanded, the arbitrator found, involved treatment and diagnosis and was not required at the point in the grievor’s claim that it was requested.
Disciplined for her refusal to submit detailed medical information to a third party in support of her claim for short-term disability, a worker grieved. The union said the employer was infringing on the worker’s right to privacy.
Employed since 1999 as a security guard at a casino, T.B. was one of four workers to file a grievance concerning the employer’s insistence that the workers provide confidential medical information to a contracted, third-party health insurance administrator.
Early in 2009, T.B. developed a medical condition that prevented her from working nights. She sought an accommodation to allow her to work days. The employer agreed to the accommodation and, in accord with its disability management policy, the employer forwarded a two-part medical form to T.B. for her to complete.
The first part of the form was an authorization to consent to the release of specified medical information that could include information about the subject’s general condition, diagnosis, treatment, the names of treating physicians and other detailed information. The second part of the form provided space for the attending physician to reply to detailed questions about the subject’s condition.
T.B. ignored the first part of the form. On the space in the form for the report of the attending physician, T.B.’s doctor said only that she should not work nights for one month.
While T.B. was accommodated as requested, she was also warned about her failure to complete the form.
Refused to supply medical information
A few months later, T.B. was ill again and was required to make a claim for short-term disability. Again she refused to supply the requested information. T.B. was given a one-day suspension.
The union grieved.
The employer argued that the medical information was requested pursuant to its disability management program. The union had assented to the program and the terms — including the requirements for medical information — were spelled out in the collective agreement.
The employer said it was entitled to require employees to provide relevant medical information in support of their claims for sick benefits or to facilitate specific workplace accommodations or returns to work. The issue was the appropriate balance between an employee’s legitimate right to privacy and an employer’s legitimate need to manage its business and the employer/employee relationship.
The union said that the medical form in question went beyond what was agreed to in the collective agreement. Detailed information about diagnosis, treatment and symptoms are private and confidential and not necessary for the exercise of management’s rights. The form constituted an unreasonable invasion of employee privacy rights, the union said.
The Arbitrator agreed.
An employee’s personal medical information is generally understood to be private and confidential, the Arbitrator said. However, employers are entitled to sufficient information in order to establish that an employee is legitimately absent due to illness or medically able to assume his or her duties when returning to work or to establish the appropriateness of a workplace accommodation.
From the employee’s side, that means they may only be required to provide medical certification that they are unable to attend work, verification that they are being treated, any physical restrictions and their expected date of return.
To balance these competing interests, Arbitrators say that employers are entitled only to such medical information as is reasonably required in the circumstances. The fact that the employer may be requesting that the information be divulged to a third party does not change the equation.
In circumstances where there is reasonable doubt about an employee’s fitness or ability to perform assigned duties, an employer may be entitled to additional medical information about the employee’s diagnosis and treatment. However, the employer is not entitled to this information absent a demonstrable need, the Arbitrator said.
One size does not fit all
“While it is easy and efficient for an employer to construct ‘one-size-fits-all’ disclosure forms in which employees may be required to disclose a wide range of medical information in a variety of situations, the jurisprudence makes it clear that such forms will often run afoul of an employee’s privacy rights … Without demonstrable need, the Employer cannot routinely require employees to disclose a diagnosis, or a course of treatment. Those parts of the form that purport to require such information would, absent clear language in the collective agreement, constitute an unreasonable invasion of the employee’s privacy,” the Arbitrator said.
The Arbitrator rejected the employer’s argument that the collective agreement authorized the employer to request the information.
Language in the contract referencing the requirement that employees submit the forms and information “necessary” for the receipt of benefits did not confer on either the employer or the third-party administrator an unfettered right to determine what private information may be necessary to establish the entitlement to a benefit, the Arbitrator said.
Elements of the form seeking disclosure regarding an employee’s diagnosis or the particulars of treatment constituted an unreasonable invasion of employee privacy, the Arbitrator said.
The grievance was allowed and the employer was ordered to refrain from requiring employees to complete the form as constituted or to alter it.
Reference: Teamsters Local Union 879 and OLG Point Edward Casino. Norm Jesin — Sole Arbitrator. Jim Fyshe for the Union. Simon Mortimer for the Employer. May 3, 2011. 17 pp.
