EMPLOYER NOT ENTITLED TO DIAGNOSIS OR NATURE OF ILLNESS WHEN DETERMINING INITIAL ENTITLEMENT TO SICK LEAVE

February 8, 2010

A recent arbitral decision further clarifies the scope of medical information that can be required during the initial stages of an absence and sick benefit claim by an employee.

The Society of Energy Professionals filed a grievance alleging that Ontario Power Generation (OPG) had violated human rights and privacy legislation, by requiring its employees to disclose private medical information to substantiate a claim for sick leave benefits after five (5) days of absence.

The Arbitrator concludes that under the Collective Agreement and applicable privacy legislation, the employer could not require all employees after five (5) days of absence, to remit the information required on OPG’s medical form (MAR) and in particular, that related to diagnosis and underlying medical condition in order to receive short-term sick leave benefits. The MAR form required disclosure of private medical information that was inconsistent with the Collective Agreement and relevant legislation.

In reaching this conclusion, the Arbitrator noted that individual employees have important privacy interests that must be balanced against legitimate business interest of the employer. To strike out this balance the information requested must be reasonably necessary.

The Arbitrator noted that although diagnosis would, no doubt, prove useful to the employer for a variety of purposes, including the greater administrative convenience and efficiency for the purposes of administrating sick leave benefits and other employer obligations (i.e. the duty to accommodation, etc.), the employer had failed to demonstrate that this information was reasonably necessary for the administration of the sick leave benefits and in particular, determining entitlement to sick leave benefits for all claimants after five (5) days of absence.

In the Arbitrator’s view, the same analysis applied in respect of the requirement to provide the “nature of the illness”. Therefore, in contrast to other recent awards, the Arbitrator denied the employer’s right to request the “nature of the illness” on its medical forms.

Similarly, the requirement to report whether the employee has been referred to another physician and if so, when and whom, was found to go beyond what was reasonably necessary for the administration of the sick leave plan at the initial five (5) day threshold as it presented a significant risk of revealing a diagnosis. 

The Arbitrator further found that the broad consent on the MAR form was an open-ended consent to an ongoing exchange of personal information between the employee’s personal physician and OPG’s health services for a wide variety of purposes and was too far reaching in the first instance. Further, the consent required on the MAR was held to be coercive as it threatened to withhold sick leave benefits if the information requested was withheld.

Agreeing with Arbitrator Surdykowski in Hamilton Health Sciences the Arbitrator did, however, note that this decision did not mean that the employer was “handcuffed” from seeking broader access to such information where the employer has reasonable grounds to doubt the accuracy or the validity of the information provided in the first instance, nor did it mean that the employer will be prevented from acquiring further relevant and appropriate information when required to address a request for accommodation or reasonable concern for safety of a returning worker or co-worker in individual cases.

If you require assistance in determining what medical information can be requested of employees at various stages during an employee’s absence or to facilitate a return to work, please contact our Labour Department.