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 employee's consent.
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 Act."
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 damages.
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.
St. Patrick’s Home of Ottawa Inc. v Canadian Union of Public Employees, Local 2437, 2016 CanLII 10432 (ON LA)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
About Dentons
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.