An arbitrator has decided that an operator of a long term care
facility violated both the Occupational Health and Safety
Act and the collective agreement by sharing an employee's
medical information with another employer, without the
The employee was a part-time dietary aid at the long term care
facility, St. Patrick's Home of Ottawa Inc. After the employee
advised that she required an accommodation in her other position at
a different long-term care facility due to medical reasons, St.
Patrick's asked her to provide a medical certificate indicating
her fitness and ability to do her job.
The other long-term care facility began to question whether the
medical restrictions that she was presenting to them were
legitimate. The other long-term care facility then requested
certain information about the employee's employment at St.
Patrick's, including whether she had worked her
regularly-scheduled shifts, had requested any workplace
accommodations or provided any work-related restrictions. St.
Patrick's gave the other facility that information, including a
medical note that the employee had provided. St. Patrick's
later acknowledged that information should not have been disclosed
without the employee's consent.
The arbitrator held that St. Patrick's had violated sections
63(1)(f) and 62(2) of the OHSA:
"Section 63(1)(f) of this Act specifies that no person
shall disclose any information obtained in any medical examination
except in a form that will prevent the information from being
identified with a particular person or case. The copy of the note
that this Employer gave to West End Villa contained medical
information from the Grievor's doctor that clearly identified
the Grievor. Further, section 62(2) of the Act mandates that no
employer shall seek to gain access to a health record concerning a
worker without the worker's written consent, except by an order
of the court or other tribunal or in order to comply with another
statute. The Grievor gave no consent to the release of the
information or note and West End Villa neither requested the note
nor had any legal authorization to receive it. Since West End Villa
had no right to seek the Grievor's health information, this
Employer had no right to provide it. Therefore, the Agreed Facts
reveal a clear violation of the Occupational Health and Safety
The arbitrator also found that the disclosure of the information
violated the collective agreement in that it constituted
"harassment", which was defined in the collective
agreement as, "any behaviour which denies and or undermines
individuals' . . . dignity and respect, and that is offensive,
embarrassing and humiliating to said individual." Lastly, the
arbitrator held that the disclosure constituted the tort of
"intrusion upon seclusion".
The arbitrator ordered St. Patrick's to comply with its own
confidentiality policy and to pay the employee $1,000.00 in
This case illustrates the increasing importance of privacy
– particularly of medical information – in the
workplace, and that privacy obligations can come from unexpected
places, including the OHSA.
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On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
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