In Complex Services and OPSEU Local 278, Arbitrator Surdykowski confirmed that, regardless of the existence of individual privacy rights, employers still have the right to request and even require that employees provided medical information in certain circumstances.
The employer in this case had become concerned about the grievor’s mental health upon her return from a medical leave of absence. The employer accordingly referred the grievor to a doctor to have her functional abilities assessed. However, the grievor refused to consent to the disclosure of her functional abilities, claiming that this medical information was confidential. As the employer was unable to discern the grievor’s accommodation needs and fitness to attend at work without this information, the grievor was placed on a second medical leave, until such time as she could safety return to work.
Both the union and the employer filed grievances. The union alleged that the grievor had been discriminated against and harassed in the course of the accommodation process, while the employer alleged that the union and the grievor had failed to meet their obligations pursuant to the duty of accommodation by failing to provide the requisite medical information.
Arbitrator Surdykowski found that, although an employee’s personal medical information is generally private and confidential, an employer is entitled to access that information for legitimate work purposes, including to confirm that an employee is able to safely return to work, to provide appropriate accommodation, or to otherwise comply with applicable legislation and/or collective agreement. While employees are entitled to refuse to provide their confidential medical information to their employer, they must then accept the consequences of that decision, which may include the employer’s refusal to allow them to return to the workplace, the delay or disruption of the accommodation process, the denial of benefits, or even the loss of their employment.
The Arbitrator then went on to consider the impact of the Ontario Court of Appeal’s decision in Jones v. Tsige, released January 18, 2012, in which the Court recognized the privacy rights of individuals with the creation of the new tort, “intrusion upon seclusion”. Finding that the Court’s decision did not limit employers’ rights to access employee’s medical information for the above-referenced purposes, he stated:
“…it does not stand for the proposition that asking for or even demanding that an employee disclose medical information for a legitimate purpose constitutes an improper or actionable intrusion on the employee’s right to privacy.”
In the case before him, Arbitrator Surdykowski concluded that, as a result of the grievor’s refusal to disclose her functional abilities, insufficient medical information was available to allow the employer to accommodate the employee safely in the workplace. He further found that, in so refusing, the grievor had failed to fulfil her obligations under the accommodation process. Accordingly, the union’s grievance was dismissed, and the employer’s grievance was allowed.
Complex Services is significant, in that it is the first arbitration award to consider the impact of the Court of Appeal’s recognition of the tort of intrusion upon seclusion. While it remains to be seen whether Arbitrator Surdykowski’s decision will be applied by other decision-makers, in our view, his interpretation of the impact of the new privacy tort on employers’ rights and obligations in respect of employee medical information is a reasonable one.