Earlier this year, the Québec Arbitration Tribunal took a stance on pre-employment medical examinations in its decision in Syndicat des travailleurs et travailleuses de Loto-Québec (CSN) v. Loto-Québec (April 26,2013) AZ-50963201, Arbitrator Nathalie Faucher. In the case under consideration, the employer was seeking to fill a position the job functions of which included the manipulation of heavy boxes, and required applicants to undergo a medical examination as well as to complete a questionnaire concerning their health, medical history and alcohol/drug use. The union filed a grievance claiming that the medical examination and questionnaire went beyond checking the competencies required to do the job and criticized the employer for collecting employees' personal health information in contravention of their privacy rights under the Québec Charter of Human Rights and Freedoms. The Arbitration Tribunal held that the employer can require a job applicant to undergo a medical examination and to answer a questionnaire regarding his health in order to check whether the job applicant meets the requirements of the job and that such means do not violate the individual's privacy rights, as protected under the Charter, as long as the employer does not receive the individual's personal health information, but instead receives a report indicating whether the individual is physically able to perform the relevant job functions. It is worthwhile to note that the Arbitration Tribunal considered the Québec Court of Appeal decision in Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Coeur du Québec (SIIIACQ) v. Centre hospitalier régional de Trois-Rivières, which was rendered a few months earlier during the Tribunal's deliberations. Although this case centered principally on the right of an employer to fire an employee for making false declarations regarding the employee's health in a pre-employment questionnaire, the Court of Appeal nonetheless set out the criteria to be considered when evaluating whether an employer can request certain health information prior to hiring someone; notably whether the information sought by the employer is tied to the job functions that the individual is being asked to perform and the responsibilities being delegated to him or her.
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