How to protect sensitive information

If a worker requests accommodation, how does an employer balance privacy issues?
By Colin Gibson
|Canadian HR Reporter|Last Updated: 05/15/2017

Question: If a worker requests accommodation based on family status, how does the employer balance the sensitivity of the worker’s private information with having enough information to evaluate the request?

Answer: In most Canadian jurisdictions, family status is a prohibited ground of discrimination under human rights legislation. As a result, where a workplace rule has the effect of discriminating against an employee because of her family status, the employer may have a duty to take reasonable steps to accommodate the employee’s circumstances, up to the point of undue hardship.

The nature and extent of the accommodation may depend on the jurisdiction that governs the employment relationship.

In the 2004 Campbell River & North Island Transition Society v. H.S.A.B.C., the B.C. Court of Appeal ruled a prima facie case of discrimination on the basis of family status will only be made out if a change in a term or condition of employment results in “serious interference with a substantial parental or other family duty or obligation of the employee.” Under this test, most situations involving conflicting work and family obligations will not trigger the employer’s duty to accommodate.

In the 2014 Johnstone v. Canada (Attorney General), however, the Federal Court of Appeal expressly disagreed with the decision in Campbell River, and ruled that where workplace discrimination on the ground of family status resulting from child-care obligations is alleged, the claimant must show (a) a child is under her care and supervision; (b) the child-care obligation engages the individual’s legal responsibility for that child, as opposed to a personal choice; (c) she has made reasonable efforts to meet those child-care obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and (d) the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child-care obligation. Under this test, the employee does not need to show “serious interference” with family obligations before the duty to accommodate arises.

An employee who seeks accommodation must participate actively and co-operatively in the accommodation process, and assist the employer in its search for an appropriate accommodation. The employee’s duty to assist will include providing the employer with the information it needs to make a proper assessment of the requested accommodation.

An employee’s duty to provide necessary information is often discussed in cases involving disability-related accommodation requests, where the employer needs medical information to evaluate the employee’s need for accommodation and the specific accommodations that are medically required. In these situations, although medical information is ordinarily private and confidential, it is acknowledged that employers can require access for legitimate purposes such as investigating appropriate accommodations.

The employer is entitled only to the information it needs to discharge its duty to accommodate, and it must ensure such information: is accessed only by employer representatives who need to see it, is protected from disclosure, and is properly secured. While an employee generally cannot be disciplined for failing to provide required medical information, an unreasonable failure to co-operate in the process may end the employer’s duty to accommodate.

Similarly, an employee who seeks accommodation on the basis of family status must provide the employer with the information it needs to evaluate the request and determine the accommodations that are necessary. This could include the ages of the employee’s children, any special needs affecting their care, the employment circumstances of the employee’s spouse, the employee’s financial situation, and the availability of other family members to assist with childcare.

The circumstances of each situation must be assessed so the employer can balance its obligations under the applicable privacy legislation and duty to accommodate.

For more information see:

Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.).

Johnstone v. Canada (Attorney General), 2008 CarswellNat 661 (F.C.A.).

Colin Gibson is a partner at Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com.

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