Ignored and Misunderstood: Privacy Rights and Medical Information in the Canadian Workplace

Introduction

In 1881, an English Appellate court said: "[I]t is well established that persons do not by virtue of their status as employees lose their right to privacy and integrity of the person a person."² In Canada, over 130 years later, we are still very much in the infancy of understanding privacy rights and integrity of the person for workers when it comes to medical information in the workplace. Courts and labour arbitrators have made strong statements in favour of medical privacy in the workplace and given lip service to its importance. For instance one Canadian arbitrator stated:

Both subjectively and objectively, personal medical information is confidential personal information. The confidentially of the doctor/patient relationship and personal medical information is universally and legislatively recognized as one of the most significant privacy rights in modern Canadian society.³ Yet, there are many assumptions and misconceptions about what has been called "one of the most significant privacy right in modern Canadian society." Employers continue to ask for overly broad medical information; arbitrators rarely consider or apply privacy statutes.

Medical issues frequently arise in labour arbitration in a range of matters including short and long term sick leave administration and entitlements to benefits, disability accommodation, monitoring of attendance programs, fitness to return to work following a leave, drug and alcohol testing and defences to discipline. This paper does not attempt to review all these issues. This paper largely focuses on reviewing the statutory privacy scheme that has been put in place, jurisdiction by jurisdiction, recently across Canada. We review how labour arbitrators, and to a lesser extend courts and privacy commissioners, have applied the privacy acts in the workplace, focusing on the last five years, where now all Canadian jurisdictions have statutes with express, and often robust, privacy protections.

Have privacy statutes made a difference? Are the acts being applied at all? How do arbitrators interpret these statutory provisions that severely limit the collection, use and disclosure of an medical evidence unless it meets the test of "reasonably necessary"? How are arbitrators interpreting common law privacy principles or the recent privacy tort "intrusion upon seclusion"?

Our review indicates that largely privacy statutes are ignored when it comes to workplace issues. In particular, it appears that arbitrators do not seem comfortable with applying the statutory privacy provisions and prefer to simply fall back on the language of 'balancing' individual privacy rights with the employer's business interests without regard to the statutory tests, restrictions and processes. This has significant implications for employee rights, as it results in impeding workers' access to the robust protections within the legislation.