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DJM SPEAKING POINTS FOR LSUC DUTY TO ACCOMMODATE & PRIVACY

PANEL
JUNE 16, 2016
What are the privacy rights that attach to medical information where an employee
requests accommodation in the workplace? Is there a general rule of thumb about
how much medical information an employer is entitled to see, and who gets access to
it? [ANDREW]
-restriction on short term absences, often in the CA
-certificate only
-a general statement of the nature of the disabling illness or injury
(Surdykowsk)
-date of visit to practitioner (Surdykowski)
-versus more restrictive Whitaker view
-mid-term absences - whats reasonable necessary generally equals
-nature of the illness
-functional restrictions or requirements
-prognosis for recovery
-plus sometimes
-treatment plan
-statement of compliance
-diagnosis
-who
-whoever needs it
-occ health department is a privacy screen
-use a purposed-based consent and never a person-based consent
-person-based consent is not required by law

-2-overly restrictive
-once you have it use it on a need to know basis in accordance with the consent
What about PHIPA? How does it apply to employers and their collection of employee
medical information? [DAN]
-PHIPA imposes a range of rather strict duties on Health Information Custodians
-employers do not owe employees the duties of a health information custodian when
they collect medical information for employment-related purposes
-nurses and doctors who work in an employers occupational health departments do
not owe employees the duties of a health information custodian when they collect
medical information for employment-related purposes with one caveat that Ill explain
-before I explain the caveat
-employers are recipients in that case
-bound by section 49 essentially use and disclose for the purpose collected
-easy allows information to flow on a need to know basis
-doesnt change if you use a health professional to receive information for you they
are your agent have no personal duties under PHIPA at all
-though the health professional continues to be bound by their professional duties, what
professional code restricts the use of information in accordance with consent???
-confusion over this has been caused by a Div Ct case called Hooper slowly moving
beyond Hooper - the law is straightening out

-which gets to the caveat


-when the doctor or nurse provides health care to the employees and include the
information in the same record, the entire record becomes subject to PHIPA
-does happen in many occupational health departments
-can provide both functions white coat black coat
-not an ideal tends to create problems for using the employment information even if
you separate the records and the two functions, which you should

-3Since 2012, when the Ontario Supreme Court recognized the tort of invasion of
privacy in Jones v. Tsige, employees also have the right in some cases to seek
damages for intrusion upon seclusion. Can you tell us briefly what this means, and
has it had any impact on the right of employers to gain access to employee medical
information? [ANDREW]
-arbitrators balanced before and balanced after
-medical information has always been recognized as justifying privacy protection

-J v T has a built in governor highly offensive to the reasonable person


-not a serious impact on management rights
What about if an employer mishandles medical information in its possession, to
employees have any recourse? [DAN]
-unionized employees have had some successes in the grievance procedure
-St. Patricks Home (Knopf) one employer no work-related restrictions
($1,000)
-Halifax Employers Assn (Picher) $9,000
-CP Rail (Stout) - $25,000
-suppose there is common law liability to non-union employees
-individualized basis not a practical remedy except for the very angry
-breach of privacy is replacing defamation as the principled claim of the day
-if its not an intentional breach there may be a serious problem in succeeding
without proof of actual harm (no moral damages for negligence)
-say this despite record of class action certifications to date
I've sometimes encountered in my practice the challenging situation where a grievor
appears to have a mental health disability, but it's either not diagnosed or the grievor
does not acknowledge it. How would you handle such a situation? [ANDREW]
-employers cant force someone to get treatment
-if the behaviors are incompatible with essential job duties you can place them on
administrative leave

-4Let's turn to the context of litigation and how to handle confidential medical
information. Do you have any particular practices when dealing with disclosure of an
employee's sensitive medical information? What obligations do lawyers have when
handling private medical information in the litigation process? [DAN]
-first, note the OPC takes the position it has jurisdiction over lawyers activity to a
degree
-second, I theres an implied undertaking (which doesnt account for security)
-if its the grievor Im open to protective terms
-receive it physically
-not make copies except to adduce in evidence
-more resistant to counsels eyes only
-but client doesnt need to have a copy
-can also specify who from the client will have access
-basic data security
-clear desk
-locked cabinets
-not in car overnight
-not lying around my house
-non-parties parties
-routinely redact identifying information
-we need to do better at that
What about in the hearing itself? Do you generally handle medical evidence like any
other evidence? Are there any special practices that apply? [ANDREW]
-most of my experience is with non-parties
-redact for submissions
-ask not to be identified