Arbitration Award Addresses Consent Concerns

DATE: April 08, 2011

Mississauga, ON—The last thing employees need to be worrying about when they’re sick is whether their privacy is being violated without their consent. A recent ground-breaking arbitration decision ensures they won’t have to.

In the fall of 2009, an employer operating a number of CLAC-represented long term care homes decided to contract out administration of sick time and short term disability benefits. It also changed a number of forms and procedures, violating the terms of some of the homes’ collective agreements.

Of particular concern to members was consent to access personal medical information, the potential withholding of benefits if they did not provide consent, and payment for doctor’s notes (a negotiated benefit in some of the agreements). To deal with these concerns, CLAC filed a policy grievance as well as a number of individual grievances.

In her detailed decision, released March 9, 2011, arbitrator Paula Knopf clarified the rights of employers and employees when it comes to health-related absences. The ruling, which has implications for workplaces across Canada, included the following remedies.

 

• Forms may only deal with the current absence and may not ask the attending physician to fill out information irrelevant to the current illness.
• Forms may only ask for the nature of the illness or injury, not the specific diagnosis.
• Forms may only deal with the duration of the illness, the employee’s anticipated date of return, possible workplace modifications needed for a return to work, and the employee’s functional abilities regarding his or her job.
• The collective agreement always prevails when there is a conflict between the agreement and the forms and procedures.
• An employer cannot demand that an employee receive certain treatment as a condition of receiving benefits, and treatment details must remain confidential. But failure to follow the treatment plan may result in non-payment of benefits.
• Employees can be required to undergo an independent medical examination only under very limited circumstances.
• Employees on sick leave do not have to remain in their usual place of residence during an absence, but they must remain in communication with the employer.
• Employees must be notified prior to a third party directly contacting the attending physician and must have the option to refuse consent.
• Employees must be advised that their claim may be denied if they fail to provide access to relevant and necessary information related to their current absence.

For further details regarding the decision, please refer to the arbitration award.
 

Revera Arbitration Award (96KB)