Canada: Personal Health Information Act and Hours of Work

On November 1, 2004, Ontario’s Personal Health Information Act, 2004 ("PHIA") became law. The PHIA regulates how health information custodians may collect, use and disclose personal health information within the Ontario health care system. Personal health information is broadly defined to include information relating to the physical or mental health of an individual.

Though the PHIA’s regulatory impact will largely be restricted to the personal information practices of "health information custodians" (which by definition includes health care providers such as hospitals, community care access centres, pharmacies, physicians and other medical professions), the new rules will have some implications in Ontario workplaces. Specifically, the PHIA will serve to regulate the information practices of employers whom receive personal health information from health information custodians in the course of, or for the purposes of, administrating sick leave policies or benefit programs, for instance.

In brief, due to requirements imposed in the PHIA a health information custodian will only disclose personal health information about an employee (including for instance, an employee’s functional abilities) if the employee first provided his or her express consent to the disclosure. Naturally, this may have an impact on employers’ attendance management, sick leave and benefit programs – particularly for those employers with in-house medical facilities, for the flow of personal health information between a health information custodian and an employer will be subject to the individual first having provided his or her express consent to the disclosure. In short, the employee’s medical information will not be accessible until the employee provides his or her medical advisor consent to disclose his or her personal information to his or her employer.

Furthermore, once an employee consents to the disclosure of his or her personal information to his or her employer, the employer receiving the information will be restricted under the PHIA to using or disclosing the information strictly and solely for the purposes for which the employee authorized the health information custodian to disclose the information in the first place and for no other reason. Thus, employers are specifically cautioned not to use an employee’s personal information for any reason other than the purpose for which the information was collected (e.g. administering a sick leave plan, pre-employment physical capabilities analysis, etc…), for the PHIA expressly provides employees who feel aggrieved with an avenue to voice their complaints and compel compliance with their right to keep and maintain their personal health information confidential.

A breach of the PHIA could lead to a complaint with Ontario’s Information and Privacy Commissioner and, if the matter reaches the court system, damages for breach of privacy and mental anguish. Moreover, any wilful breaches of the PHIA could lead to a fine of up to $250,000.00 for corporate employers and up to $50,000.00 for individuals.

In light of these developments, employers should consider reviewing their health information policies, forms and practices to ensure (1) the employee is specifically notified of the reasons, purposes and subsequent uses for which the employee’s personal health information is sought and (2) the employee provides his employer and medical practitioner express consent for the disclosure and collection of his or her personal health information. This will at least ensure that all information necessary to administer plans and return to work arrangements are disclosed and made available in a timely fashion.

Employers are reminded of the changes to the Employment Standards Act, 2000 that come into effect on March 1, 2005. Bill 63, which amends the Employment Standards Act, 2000, requires employers to seek and secure the Ministry of Labour, Employment Standards Branch’s approval before scheduling hours of work in excess of 48 hour per week and entering into overtime averaging agreements (save and except for those employees that are exempt from the hours of work and overtime provisions of the Employment Standards Act, 2000).

The Ministry is currently accepting applications. Applications are available on the Ministry of Labour’s website, and further information about the application process and Bill 63 is available on our website in our previous Bulletin entitled Government of Ontario Introduces Changes to Hours of Work and Averaging Agreements Under the Employment Standards Act, 2000.

© Copyright 2005 McMillan Binch LLP