Introduction

Employers are entitled to require employees to visit in-house occupational health department physicians to obtain reasonably necessary medical information if that right is provided for in the collective agreement. This was confirmed in Rio Tinto Alcan Inc (RTA) v UNIFOR, Local 2301 (Medical Information Grievance) when the arbitrator found that the employer had not violated employee privacy rights when it required employees to visit in-house occupational health department physicians to confirm eligibility for wage loss protection benefits.

Facts

RTA operates a safety-sensitive aluminium smelter in Kitimat, British Columbia. Article 37 of its collective agreement with UNIFOR, Local 2301 provides that the Kitimat works disability indemnity plan reflects the parties' agreement that RTA will provide wage loss protection to eligible employees who are absent from work due to non-work related illness or injury.

RTA provides medical and health services to its employees through its occupational health department (OHD). Eligibility for disability indemnity plan benefits requires that an employee visit a physician within five days of the start of a disability and return a completed physician's report to the OHD, which makes the final determination on whether the employee is disabled from performing their regular job duties.

The union filed a policy grievance and three individual grievances alleging that RTA had breached Article 37.10 of the collective agreement by requiring employees in receipt of disability indemnity plan benefits to undergo a consultation and examination by an RTA physician.

Article 37.10(a) provides that:

"The Company reserves the right to have the employee examined by a physician of its choice. The decision of the Company's Occupational Health Department (in consultation with your attending physician) regarding whether an employee is disabled is final."

The union argued that RTA's actions constituted arbitrary intrusions on employees' privacy. It submitted that RTA unreasonably asked employees to see an OHD physician and then used that opportunity to examine the employees' medical files.

Decision

The arbitrator ruled in favour of RTA. He found that the practices and policies relating to the operation of the OHD and its functioning did not result in an unreasonable intrusion on employee privacy rights. An employer has a right to ensure that employees are absent from work for legitimate reasons only, and is entitled to sufficient information necessary to facilitate the early, safe return to work of injured or ill employees. The employee is obliged to provide such information.

The arbitrator explained that the parties had negotiated a comprehensive scheme in the collective agreement to ensure the continuity of earnings for employees who are unable to work due to non-work related illness or injury, and the eligibility requirements.

The arbitrator was satisfied that most disability indemnity plan claims are accepted by the OHD based on the information contained in the physician's report. Accordingly, OHD physicians see only a small number of ill or injured employees. A decision by the OHD to schedule an appointment is often the result of a treating physician couching a medical restriction in terms of an accommodation, which requires clarification. On rare occasions, an RTA manager may refer an employee to the OHD in the context of a workplace injury or where potential accommodation issues are identified. The arbitrator found that OHD follow-up in these circumstances is not an unreasonable intrusion on privacy rights.

Article 37.10(a) of the collective agreement gives the employer the right to refer an employee to a physician of its choosing and there was no dispute that this generally means the OHD physician, which has been the accepted practice for more than 30 years. However, where the OHD physician has reasonable grounds to believe that more information or a specialist opinion would be helpful, they can expedite referrals to medical specialists. The arbitrator found that these referrals do not constitute an unreasonable intrusion into employee privacy rights.

Comment

The decision recognises that an employer will not intrude on employee privacy rights by requiring employees to be examined by a physician of its choice where that right was negotiated in the collective agreement. It also recognises an employer's right to seek reasonably necessary medical information to ensure that employees are absent from work for legitimate reasons only, and to facilitate their return to work. In-house OHDs can be a valuable tool for employers to learn important medical information about their employees without infringing on privacy rights.

For further information on this topic please contact Kevin P O'Neill or Matthew Allard at Fasken by telephone (+1 604 631 3131) or email (koneill@fasken.com or mallard@fasken.com). The Fasken website can be accessed at www.fasken.com.

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