After an employee's union grieved that the employer had
failed to return him to work "notwithstanding that he has
provided all requested medical information", the employee has
been ordered to produce much of his medical file to the
The employee suffered a non-occupational injury and was off work
for approximately seven months. The employee's physician and
the employer's Occupational Health and Safety Services Manager
then exchanged correspondence regarding his gradual return to work.
The employee provided six medical notes from his physician
regarding his restrictions and accommodation requirements, but
refused to provide the remainder of the physician's medical
file on the employee. For instance, one of the physician's
notes stated that the employee "has been cleared to return to
work [but] due to the prolonged commute to and from work it is
recommended that he re-integrate as follows: 6 hours per day for 4
weeks. He will be re-assessed in 3 weeks to address his medical
The arbitrator stated that employees and unions should not be
ordered to produce medical documentation unless there is a clear
nexus between that documentation and the genuine factual matters in
dispute in the grievance.
In this case, the union would rely on the six medical notes in
support of its position that the employer should have accepted
those notes on their face when constructing a return to work plan
for the employee. The arbitrator said that because the union has
placed those notes before the employer, the union has:
"opened the door to the proper admission of all of the
documentation that the author of the medical reports relied upon in
arriving at the conclusions stated in those reports, and any other
documentation in the Grievor's medical file arguably related
thereto. This may include information evidencing the
physician's knowledge of the physical demands of the
Grievor's job, records of meetings with the Grievor (including
what the Grievor is reported to have said to his physician on the
matter), clinical notes of physical examinations, testing and other
assessments the physician may have conducted in coming to the
specific conclusions or recommendations reflected by the medial
notes presented to the Employer. Such documentation, to the extent
it may exist, does not expose the Grievor to an unreasonable
intrusion into his private medical condition that is outside of the
scope of the matters placed directly in issue by the Grievor's
own submission of his doctor's medical notes, and thus the
Employer's production request is not a "fishing
expedition" as suggested by the Union."
As such, the employee was required to provide the employer with
all "arguably relevant" medical documents in his
doctor's file, which the arbitrator restricted to those
"clinical notes, records of examinations, tests, descriptions
by the Grievor, and the like, forming the basis of [the
physician's] conclusions and/or recommendations in the six
medical notes" that the employee voluntarily provided to the
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Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
Businesses and employers face exposure to a variety of claims for mismanagement or misuse of personal information by employees. Damages may depend on how sensitive the information is and how it is misused.
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