THE EMPLOYERS' EDGE
An Employer’s Duty to Accommodate Still Trumps Privacy Rights
The ever-changing legal landscape in Ontario changed again in January when the Court of Appeal rendered its decision in the civil case of Jones v. Tsige, in which the Court confirmed that a cause of action lies for invasion of privacy. The Court labelled it the tort of intrusion upon seclusion. That decision was discussed in our January 20, 2012 blog, along with some potential consequences for employers.
Last month, Arbitrator Surdykowski rendered the first arbitration award to explicitly consider the impact of Jones v. Tsige in the unionized environment. In Complex Services Inc. and OPSEU, 2012 CanLII 8645 (ON LA), the arbitrator confirmed that the Court of Appeal decision does not increase the burden on employers to consider employees’ privacy concerns while fulfilling the duty to accommodate.
The Employee suffered from physical and mental health issues and required accommodation to perform her job duties. However, she refused to disclose her medical information to the Employer, citing privacy concerns. The Employer reacted by placing the Employee on a leave of absence until such time that she consented to the disclosure of her medical information. Two separate grievances were filed and the matter was expedited to arbitration. The Union alleged discrimination and harassment and grieved against the Employer because the Employer insisted that the Employee disclose certain confidential medical information and refused to implement a work accommodation program without it. The Employer grieved that the Employee refused to provide the necessary medical information and therefore, the Employee and the Union had failed to participate in the accommodation process.
After the parties had concluded their submissions to the arbitration panel, the Court of Appeal released its decision in Jones v. Tsige. The arbitrator accordingly asked the parties to tender written submissions regarding whether the Court of Appeal’s decision would have any impact on the grievance arbitration. The Union submitted that the Court of Appeal had reinforced the premium value of privacy in Canadian society. The arbitrator accepted this argument, but preferred the Employer’s position that the decision does not make it unacceptable for an employer to request, or even demand, that an employee disclose confidential medical information as a necessary component of the duty to accommodate. Specifically, the arbitrator stated, on behalf of a unanimous panel:
It remains the case that an employer is entitled to request and receive an employee’s confidential medical or other information to the extent necessary to answer legitimate employment related concerns, or to fulfill its obligations under the collective agreement or legislation, including the human rights or health and safety legislation (for example).
Further, the arbitrator confirmed that the decision in Jones v. Tsige bears no impact on an employer’s rights to manage its workplace, or to obtain confidential medical or other information as required or permitted by law or the collective agreement, or as required for a legitimate management purpose. However, employers should be mindful that an employee is only expected to disclose that information necessary for a legitimate work purpose. An employee of course can refuse to disclose such information, but there are consequences for doing so. For example, an employer may legitimately refuse to implement an uninformed or unsubstantiated accommodation process.
The arbitrator also clarified the kinds of medical information that an employer can generally require for purposes of accommodation, including:
the nature of the disability or illness (which will only include diagnosis in certain circumstances);
whether the disability or illness is temporary or permanent, and the prognosis for recovery;
work-related restrictions or limitations caused by the disability or illness;
the basis for the doctor’s medical opinion, including examinations or tests performed, though not necessarily the results; and
medical treatment which may impact the employee’s ability to work.
The Court of Appeal’s ruling still may have consequences for employers in areas such as employee monitoring and surveillance, but employers should be encouraged by the arbitrator’s endorsement that the already onerous duty to accommodate remains unchanged.
Employers looking for some direction in designing an appropriate and effective work accommodation process which abides by Ontario’s Human Rights standards and respects employees’ express rights to privacy are encouraged to consult with any of the experienced lawyers at Crawford Chondon & Partners LLP.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.