GSB#2014-3708

UNION#2014-0999-0140

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 21, June 5, 2017

Decision

1The union has filed a policy grievance dated November 19, 2014. It reads:

The Union grieves the Employer has violated the OPS Collective Agreement including but not limited to Article 2, 3, 22.9, 31A.8.2, 32, 16.2, 42, 43, 44, 70, 71, Appendix 4, Appendix 5, and Appendix COR14. The Union further grieves that these policy and program documents violate the provisions of the Ontario Human Rights Code, the Freedom of Information and Protection of Privacy Act and the Personal Health Information Protection Act, and specifically, without limiting the generality of the foregoing, their privacy protection provisions; and any other legislation as the Union may advise.

These violations are alleged in that the Employer has implemented policy and program changes contained in the following series of documents:

1. The Revised Health Information Program Guide, dated September 19, 2014 (MGS);

2. The draft revised Request for Information Form, undated (MGS);

3. The Health Reassignment Program Guide (June 2014) (MGS);

4. A June 2014 version of the Disability Accommodation Policy (Public Service Commission Directive MGS)

In addition, the employer has posted a Request for Proposals, as set out in a document entitled “Acquiring Comprehensive Vocational Assessment Services

– Key elements to be included in RFS/RFP”.

2By agreement, the parties put to the Board different aspects of the grievance in stages. The first issue relating to the extent of the union’s right to participate in the accommodation and return to work process was dealt with in a Board decision dated April 20, 2017. This decision relates to the second issue put to the Board, which is about the appropriateness of the employee consent for disclosure of health information required under the employer’s policies.

3The employer advised that while it does not agree that it is bound by The Personal Health Information Protection Act, (“PHIPA”) or The Freedom of Information and Protection of Privacy Act (“FIPPA”), it has committed to follow the principles set out in those statutes.

4The focus of the grievance is on the Health Information Program (“the Program”) and the Health Information Program Guide, February 2015 (“the Guide”). The union raises a number of concerns about the program and the manner in which the employer implements it. The union made submissions about its concerns by posing a number of questions to the Board.

Union Submissions

5The program and the manner of its implementation is described in the Guide. The union made reference to various provisions in the Guide and made submissions as to the basis of its objection. The Guide at 2.1 provides that “where health information is requested by the employer, … the manager or HR Specialist is available to explain and discuss the consent with the employee”. The union submits that PHIPA, FIPPA and the collective agreement require that the scope of the consent sought must be discussed with the employee. In order to make the consent meaningful, that discussion is mandatory. It was also submitted that managers are not experts on the subject. Therefore, the HR Specialist must be required to meet with the employee and explain the consent. The onus should not be on the employee to seek an explanation. Someone being available is not enough.

6The Guide in section 3 sets out the “Information Gathering Process”. Referring to sections 3.2 and 3.3, counsel argued that the Guide permits managers and HR Specialists to meet with employees and provide requests for health information forms and referral packages etc. to be taken to their treating medical practitioners, but there is no requirement that the exact content of the information requested or its specific purpose be discussed. That may result in the employee consenting to the release of intrusive and unnecessary health information, and giving the employer authority to use that information for any purpose as it wishes.

7Counsel submitted that it is very important to keep in mind that the program applies not only to OPSEU members. It applies to all OPS employees, unionized and non-union, including those appointed under the Public Service of Ontario Act. Also, as indicated in section 1.4 of the Guide, Health information is collected for different purposes, all of which may not be relevant in any given case. For example, an employee may be sick, but may not need any accommodation. Even within a single purpose, for example accommodation, the employer must proceed on a case by case basis depending on the facts and the needs of the particular employee. The program, however, proceeds on the basis of a “one size fits all” approach, which results in requiring employees to consent to requests for health information not relevant to their individual circumstances. At p. 8 the Guide states that “The employer will seek to gather information necessary to meet the need (outlined in section 1.4). Health information sought by the employer will be initiated through the least intrusive manner necessary to meet the requirement”. Despite this statement, by using a single form regardless of the particular purpose for which information is sought in a given case, the employee is expected to consent to release of a broad range of health information, some of which may have no relevance to his needs.

8Union counsel drew the Board’s attention to the preamble in the Request for Employee Health Information which states that the information provided is confidential, and “will only be used with the consent of the employee” for multiple purposes, namely to administer the short-term sick leave entitlements, to confirm the anticipated duration of sick leave absence to allow the employer to make employment relate operational decisions, and to develop and implement timely and appropriate employment accommodation “and/or” return to work. The form is divided into parts 1 and 2. In Part 1, the employee’s treating medical professional completing the form is required to indicate the employee’s period of absence due to illness or injury, the dates of most recent assessments, the estimated return to work date if the employee is unable to return to work presently and whether the employee is able to return without accommodation. If the employee can return only with accommodation, information is sought as to the maximum hours per day and per week, and the estimated duration of the restriction, and the medical professional is required to complete Part 2 of the form.

9Section C of Part 1 is to be completed and signed by the employee. It is set out in the following language:

I understand that as part of the process of identifying my functional abilities, limitations, and/or restrictions for the purposes of employment accommodation, return-to-work planning, and/or short-term sick leave entitlements; my employer may require my health information.

Accordingly, I ---------------------------- authorize and consent to, the release by

(Last Name, First Name)

medical practitioner/ nurse practitioner, of my health information to my employer as represented by the human resources specialist.

I further understand and consent to my employer:

A. Sharing job related information with my medical practitioner or nurse practitioner;

B. Seeking clarification (in writing) of the information provided on this form;

C. Sharing information provided on this form and supplemental information with my manager and human resources on a need-to-know basis for the purposes as described above;

D. Sharing information provided on this form and further clarifications with staff in labor relations or legal services where necessary to obtain advice on facilitating the purposes set out above.

Health information provided on this form is collected for the purposes set out above. The information provided will only be used by authorized individuals for the specified purposes. Questions about the collection of health information on his form can be directed to the human resources specialist whose contact information is set out in the letter accompanying the form.

Employee signature Date (yyyy/mm/dd)

10Part 2 of the Form includes a preamble which is identical to the preamble in Part 1. Section B of part 2 seeks information about the employee’s functional abilities and limitations, restrictions. The language of the consent to be signed by the employee is the same as in Part 1 of the Form.

11Based on the language used in the form, union counsel submitted that the employee would not know specifically what information he is consenting to disclose. He pointed out the language to the effect that the employee understands that the employer may require the health information for a number of different purposes. Counsel argued that an employee signing the form allows the employer to seek information for any or all of the purposes mentioned. He submitted that the employee is entitled to know specifically what information the employer is seeking. The use of “and/or” means that the employer is given blanket consent to seek any information at its discretion. Counsel argued that “and/or” does not belong anywhere in the consent form, because for consent to be knowledgeable, the employee must know what specific information he is consenting to release, and for what specific purpose.

12Counsel pointed out that under the program the employer may request health information, if required to assist with accommodation, return to work, reasonable suspicion that employee performance or attendance issues may be a result of a disability, or to support or verify frequent absences due to illness, injury or disability. Counsel argued that using the same form to seek information in all of these different circumstances is inappropriate. It can result in information not relevant to an employee’s particular circumstances being disclosed. For example, an employee’s functional abilities, or mental or physical limitations may be disclosed, when the employee is merely requesting sick leave.

13Union counsel referred to the following provisions of PHIPA:

S. 18(1): If this Act or any other Act requires the consent of an individual for the collection, use or disclosure of personal health information by a health information custodian, the consent … (b) must be knowledgeable.

S. 18 (5): A consent to the collection, use, or disclosure of personal health information about an individual is knowledgeable if it is reasonable in the circumstances to believe that the individual knows,

(a) the purpose of the collection use or disclosure as the case maybe, and

(b) that the individual may give or withhold consent.

Union counsel also relied on the following provision of the FIPPA:

S. 41(1): An institution shall not use personal information in its custody or under its control except,

(a) where the person to whom the information relates has identified that information in particular and consented to its use;

(b) for the purpose for which it was obtained or complied or for a consistent purpose.

Counsel submitted that these general principles in PHIPA and FIPPA indicate the importance of the individual knowing the specific information and the specific purpose for which that information is sought.

14In light of the foregoing, counsel made submissions as to how the Board should answer the questions posed to it.

Question 1. What information must be communicated to employees in order to have informed consent?

It was submitted that consent, to be “knowledgeable” as required by law, cannot be general. Before giving consent, the employee must know precisely what he is consenting to and what the specific purpose is. Is it for the purpose of accommodation, is it for return to work, or for sick leave entitlement. Therefore, in the consent form there is no room for “and/or”. An employee cannot be expected to consent to “one or the other, or possibly both”.

15Question 2: Can the employer rely upon consent provided by employees for any purpose other than those specifically reviewed and discussed with the employee?

Union counsel submitted that while the employer provides the employee with a cover letter at the time the request for health information package is given, and that cover letter may mention the purpose for which health information is sought, that is not satisfactory. The HR Specialist must review and discuss the specific information sought and the purpose with the employee. Counsel submitted that in any event, regardless of what the cover letter states, by signing the consent form as presently worded, the employee consents to the employer using the information for a number of possible purposes to be determined at its discretion. He/she would not know what specific purpose, from among those listed with “and/or”, may be at play. The employer would be able to seek information which is not relevant in his/her particular circumstances. Therefore, to address these concerns the consent form itself needs to be amended to be consistent with the law.

16Counsel submitted that although the employer states that the consent form is a “one time use” form, it is not. It allows the employer to “seek clarification (in writing) of the information” from the medical professional, as it deems necessary. There is no consent sought from the employee, and no discussion about what the clarification needed is or why. It means that once an employee signs the form, it is a prospective consent which allows the employer at its discretion seek additional information on an on-going basis without the employee’s consent or even knowledge. Counsel submitted that the answer to question 2 should be “no”.

17Union counsel relied on the following authorities: Re St. Joseph’s Health Centre, 2005 CanLII 24239 (ON SCDC), 256 D.L.R. (4th) 552 (Ont. Div. Ct.); Re West Coast Energy Inc. (2004) Carswell Nat 7565 (Hall); Re Hamilton Health Sciences Corp., 2007 CanLII 73923 (ON LA), 167 L.A.C. (4th) 122 (Surdykowski); Re West Vancouver (District) (2012), Carswell BC 4240 (Hall); Re Ontario Power Generation, (2009) 98 C.L.A.S. 246 (Etherington); Re City of Sudbury 2010 197 L.A.C. (4th) 133 (Kaplan); Re Greyhound Canada Transportation Corp, 2011 213 L.A.C. (4th) 433 (Levinson); Re Canadian Bank Note Company Limited, (2012) 222 L.A.C. (4th) 293 (Surdykowski); Re Sunnybrook Health Sciences Centre (2016) 127 C.L.A.S. 304 (Knopf).

18Question 3: Is the scope of consent in the Request for Information Form too broadly worded?

Union counsel submitted that the answer is “yes”. The present wording inappropriately uses “and/or” language. It seeks prospective consent and allows the employer, without consent or even the knowledge of the employee to directly communicate with the medical professional to seek clarification of the information provided pursuant to the employee’s consent.

19Question 4: Is it appropriate for the employer to ask the employee’s doctor to: (a) indicate if the employee is unable to return to work (b) provide an estimated return to work date (c) identify if the employee is able to return to work with/without accommodation?

Counsel submitted that the answer to these would depend on what stage in the accommodation process the employee is at the time. The answers may also depend on the status of the employee, whether he/she is on short-term sick leave, long-term sick leave, or has sought accommodation.

20Question 5: Are separate consent forms required for different purposes?

Counsel submitted that when different purposes are lumped together in a common form, consent is sought for multiple purposes, some of which may or may not be applicable. The employee would be consenting with no knowledge of the specific purpose for the employer’s request. Therefore, the Board should find that separate forms should be created for each of the different purposes.

21Question 6: Should the employer obtain a new consent each time it requires further clarification of medical information?

Union counsel submitted that the employer has stated that the form is intended to be for “one time use”. To be consistent with that, the answer has to be in the affirmative because the employer is not entitled to communicate with the doctor without the employee’s consent. To be able to give consent the employee must have knowledge of what the clarification required is, and for what purpose.

22Question 7: Should consent forms be specific to an individual health care provider?

Union counsel advised that the union is satisfied that the current form is specific to a single health care provider and is used in that way. Therefore, it has no dispute in that respect.

23Question 8: Should consent forms be time limited?

Union counsel submitted that in order to meet the standard of “knowledgeable” consent, the form has to be time limited. When the Board asked counsel to elaborate, he explained that what he means by “time limited” is that once information is obtained for an identified purpose, the consent in the form is spent, and should not be used again for any purpose.

24By way of remedy, the union requested that the Board strike down those aspects of the Health Information Guide and the consent form, which it finds to be inconsistent with the applicable legal principles.

25From interjections and comments by employer counsel during the union’s submissions, it was apparent that many of the concerns expressed by the union were based on possible interpretations of the wording in the Guide and the consent form. I had the impression that in implementing the program, and particularly in using the consent form, the employer may not be following some of the interpretations the union is objecting to. I met with counsel and urged that the parties put their minds to that possibility.

Employer submissions

26Employer counsel took the position that the program is implemented in a manner consistent with the leading case of Re Hamilton Health Sciences Corp. (supra). She pointed out that Part 1 of the form is for absences due to sickness, and Part 2 is for accommodation. The health information sought in Part 1 is much more limited than in Part 2. Counsel pointed out that the Guide at 3.2 states that the form “must be accompanied by an employer covering letter that outlines the purpose of the health information request”. The manager gives the consent form to the employee, together with a cover letter which explains the purpose of the request for health information. Once that form is completed and returned, it is not used again for any purpose. If additional information is required, the employer provides the employee with a new form accompanied by a new cover letter. She pointed out that the health information is received by a HR Specialist, who works at the Health & Welfare Centre. The manager does not see the completed form itself. Only information necessary for making decisions relating to the particular purpose or purposes, (sick leave, accommodation etc.), is disclosed to the manager.

27Employer counsel acknowledged that the consent form is “not as clear as it could be” in several aspects. First, it is not clear that the form is a “one time use form”. Second, the form is not clear that it is directed to a single medical professional, and cannot be used to obtain health information from anyone else. Third, the employer does not communicate directly with any medical professional under any circumstances. Communication is always through the employee, so the employee is kept in the information loop. This also may not be clear from the wording in the form.

28Employer counsel presented a draft consent form (“draft form”) which she stated makes the foregoing points clear, and should address the union’s concerns. The employee consent for Part 1 of the draft form is as follows:

Section C – Employee Consent to the Collection and Disclosure of Health Information

I understand that, as set out in the attached cover letter, for the purposes of (to be completed by the human resources specialist of Manager)

• return to-work planning and/or

• reduced hours of work and/or

• short-term sick leave entitlements;

Accordingly, I (Last Name, First Name)

Authorize and consent to the release of the health information contained on this Form to my employer as represented by the human resources specialist.

I understand that I am entitled to refuse to consent to the disclosure of my relevant health information to my employer, but that doing so may result in the denial of any of the above purposes.

I hereby consent to the human resources specialist*:

*sharing information provided on this form with my manager (and those with the delegated authority to authorize the request) and human resources on a need-to-know basis for the purposes as described above

*sharing information provided on this form with staff in labour relations or legal services where necessary to obtain advice on facilitating the purposes set out above

Health information provided on this form is collected for the purposes set out above. The information provided will only be used by authorized individuals for the specified purposes. Questions about the collection of health information on this form can be directed to the human resources specialist whose contact information is set out in the letter accompanying the form.

Employee Signature (YYYY/MM/DD)

*the human resources specialist may be employed by the Ministry of Government and Consumer Services, Centre for Employee Health, Safety and Wellness (e.g. Disability Accommodation Specialist); or the Commission Public Body, HR office, as defined in the Health Information Program Guide.

The consent language in Part 2 of the draft form is in the identical format and wording, except that the purposes are described as follows: “I understand that, as set out in the attached letter, as part of the process of identifying my functional abilities, limitations, and/or restrictions for the purposes of (to be completed by the HR Specialist or Manager)

• Employment accommodation or

• Return-to-work planning my employer may require my health information”.

29Employer counsel pointed out that in the draft form there is no choice in Part 1 to check off functional abilities or restrictions. This is in recognition that Part 1 is only about absences due to sickness. The HR specialist or Manager completing the form will check off the specific purpose or purposes for which the request is made. There is also reference in the form to the cover letter, which will also set out those specific purposes. Counsel pointed out that reference to purposes described as “sharing job related information with my medical practitioner or nurse practitioner”, and “seeking clarification (in writing) of the information provided on this form”, which appear in the current form, have also been deleted in both parts of the draft form.

30Counsel pointed out that the draft form explicitly states that any questions the employee may have can be directed to the HR specialist, whose contact information is set out in the cover letter. She submitted that this meets the legal requirement. There is no requirement in any statute or arbitral jurisprudence that there has to be a face to face meeting with every employee receiving a request for health information form. Such a requirement would not only be unnecessary, it would not be viable for the employer, with only 28 HR specialists available to deal with all employees OPS wide.

31Counsel further pointed out that the draft form explicitly advises the employee that he/she has the right to refuse consent, but puts the employee on notice that refusal may have consequences. This is consistent with arbitral jurisprudence and PHIPA.

32Based on the foregoing, counsel submitted that in relation to question 1 (supra para. 14), the form provides the employee all the required information. The employee is informed what information is required, and why. It is also clear which medical practitioner the request is directed to and who the information will be shared with.

33On question 2 (supra, para. 15), counsel agreed that the employer can use an employee’s consent only for the specific purpose or purposes for which consent was granted. However, she disagreed that consent can be requested in a form for only one purpose, as the union suggests. In some cases the employer may need health information for more than one purpose. As long as the purpose(s) are clearly specified, a consent form may set out more than one purpose, if the employer needs to use the information for more than one purpose.

34Counsel submitted that there is no basis for the union’s objection to the HR Specialist who receives health information sharing the information with managers or HR or legal advisors on a “need to know” basis. In order to use the information for the purpose for which it was obtained with the employee’s consent, a manager may have to approve sick leave entitlement. In another case, HR or legal advice may be necessary before making a determination whether the employer has a legal duty to accommodate in light of the health information received. It would be extremely cumbersome to seek a new consent each time advice becomes necessary. Moreover, it will significantly delay the decision-making, for example where the decision relates to accommodating an employee seeking to return to work. Counsel referred to S. 49(1) of PHIPA, which prohibits disclosure of health information for any purpose “other than … (b) the purpose of carrying out a statutory or legal duty”, and argued that in seeking HR or legal advice the employer is carrying out a statutory and legal duty to accommodate.

35Counsel submitted that the consent form signed by an employee is limited to requests for health information directed to one particular medical practitioner. It cannot be used to obtain information from anyone else. Moreover, if additional information or clarification is needed from the identified medical practitioner, a new consent form and cover letter is provided to the employee. The previously used form is spent, and may not be reused. Therefore, the union has no valid reason for concern.

36Turning to Question 3 (supra para. 18) employer counsel suggested, and the union agreed, that the issue of what information may be requested is a matter that should properly be addressed in a later phase of this proceeding. The relevance in the present phase is limited to the issue of the employee’s right to know specifically what he/she is consenting to, which is dealt with in question 1. Therefore, the Board does not need to answer the broad issue in question 3.

37Counsel agreed in relation to question 4 (supra para. 19) that the employer is entitled to request only health information that is relevant for the purposes specified. The draft form in Part 1 allows the manager or HR Specialist to check off certain purposes, and would be entitled to request only health information required for those purposes. The same applies under Part 2 of the draft form. The instructions explicitly state that Part 2 is not required to be completed where the employee seeks sick leave.

38Counsel submitted that any language in the present consent form that may be interpreted as a prospective consent has been deleted in the draft form. The draft form clearly reflects what has been the employer’s actual practice, that is, a consent form is used only once. If additional information or clarification is needed, a new consent is required.

39Employer counsel submitted that the issues (a) (b) and (c) raised in question 4 are about what information the employer is entitled to request. That is a matter that properly belongs in a later phase of this proceeding is not related to the issue here which is about the employee’s consent.

40Addressing question 5 (supra para. 20) employer counsel pointed out that the form has separate consents for Part 1, which applies in cases of sick leave and sick pay entitlement, and for Part 2 which is completed only for purposes of accommodation and return to work. The draft form makes the purposes under each part even clearer by a system of checking off the specific purposes for which the request is made. Given that system, there is no need to have separate forms for each of the many purposes for which health information may be required. It would be clear to the employee what the purpose(s) are.

41Counsel conceded that a new consent is required each time the employer requires further clarification of medical information. Therefore the answer to question 6 (supra para. 21) is “yes”. She submitted that the Guide recognizes that obligation and the employer follows that.

42Referring to question 7 (supra para. 22) employer counsel also accepted that the consent form may only be directed to one identified health care provider. Thus, in section B of the form, the name, address and other contact information is required to be filled in.

43Question 8 asks whether a consent form should be time limited (supra para. 23). Employer counsel submitted that in practice, and as per the Guide, a consent form is time limited because it can only be used once. It cannot be re-used again.

44Counsel reviewed the authorities relied upon by the union, and submitted that it is in compliance with all of the legal requirements set out therein. She submitted that none of the authorities go so far as to state that in setting out the purposes for a request, “and/or” language is never acceptable, as the union submits. In some cases the employer is not aware of the employee’s situation. The employer may therefore, anticipate that medical information may be required for more than one purpose. For example, an employee may be able to return to full duties, but may only be able to do reduced hours. In such situations the employer should be able to describe purposes using “and/or”, because it may turn out that the employee needs accommodation.

Union reply

45Together with its reply, the union was allowed to make any submissions it had on the draft form. Union counsel noted that employer counsel had agreed with the union on a number of points. While the union appreciates that, employer counsel’s agreement at the hearing by itself is not helpful. Counsel requested that the Board set out the concessions and agreements expressed by counsel in its decision. That would enable the union to direct the employer’s policy to local managers’ attention if they attempt to depart from it.

[46] Counsel argued that even if the draft form specifically identifies the purposes of the request, that would not resolve the concern because the form refers to the cover letter, and there is no guidelines or policy as to what a covering letter should or should not include. He pointed out that there are hundreds of managers writing cover letters, and in the absence of strict guidelines, they can easily expand the scope of information sought which has no relevance to the purposes set out in the consent form itself. He referred to one of the sample cover letters put into evidence by the employer as an illustration of the problem. The covering letter, marked as exhibit 5A, is clear that the purpose of the request is to “substantiate the employee’s entitlement to medical leave”. Yet in the covering letter, the manager states that various types of information is required, including “details on your current restrictions/limitations”.

47Union counsel pointed out that the preamble in the two parts of the draft form is the same preamble that appears in the current form. That preamble is not consistent with the consent itself, and can be interpreted more broadly. The preamble, therefore, has to be amended.

48Union counsel questioned the appropriateness of allowing the hundreds of local managers around the province to identify and specify the purpose of a request for health information, because it leads to inconsistency. Managers are not experts like HR Specialists, on privacy rights or on the subject of gathering confidential health information. The responsibility of identifying and setting out the purposes of a request for health information should be carried out only by HR Specialists, who have the necessary knowledge and expertise.

49Union counsel also argued that, before giving consent, the employee is entitled to know exactly who the health information will be shared with. It is not sufficient to state, as the form does, that it will be shared with “your manager’ or “a HR Specialist”. The employee’s manager or the HR Specialist responsible for the area may be replaced by others acting in a temporary capacity if the manager or HR Specialist is off sick or is on some form of leave. The employee has a right to know who exactly gets to see his/her health information. Therefore, every person who gets the information, including senior managers with delegated authority, must be identified by name. Only then will the employee be able to give “knowledgeable consent”.

50Union counsel pointed out that in the form the employee is asked to consent, to the employer sharing health information with Labour Relations or Legal Services. Once an employee signs the form, the employer would be entitled to share the information with those persons in every case, whether or not Labour Relations advice or Legal advice is necessary in the particular case, for example, where the issue is simply about sick leave.

Employer’s Sur-reply

51Counsel pointed out that in Part 2 of the draft form the words “and further clarifications” had been mistakenly included with regard to sharing of health information with “staff in labour relations or legal staff”. That provision should mirror the language in Part 1 of the draft form.

52Counsel disagreed that the sample cover letter in exhibit 5A over reaches by seeking information on restrictions/limitations. The employee had been off for two months and had provided no medical information. Therefore, the employer has the right to ask whether he/she cannot return to work at all, or whether he/she can return with some accommodation. Citing Re West Vancouver (District) (supra), she argued that an employer is entitled to inquire whether an employee needs accommodation, even though the employee had not requested accommodation. If the employee has no information about the employee’s situation, it is not contrary to PHIPA to request health information for more than one purpose.

53Counsel submitted that in any event, the cover letter is only an explanatory communication. It cannot broaden the consent form the employee signs. She reiterated that there is no legal authority offered by the union to support its claim that the employer must identify the particular HR Specialist or the manager, who gets health information by name. Moreover, it is too cumbersome and impractical. It is often very difficult to communicate and obtain information from employees off sick. If a new consent form has to be signed by the employee every time a HR Specialist or manager goes off sick, on vacation or on some type of leave, and is temporarily replaced, it would result in significant delay. That would not benefit anyone.

54Similarly, counsel argued that requesting the employee’s consent to share the information with “those with the delegated authority to authorize the request”, is appropriate and necessary. For example, if a doctor orders an employee off work for six months, his/her manager may not have authority to approve that, and may have to escalate it to higher management.

55Counsel agreed that it may not be necessary to consult Labour Relations or Legal Staff in every case. Therefore, the consent sought is expressly stated to be to consult them “Where necessary”. If information is shared with HR or legal staff when there is no need, the employer would be in breach.

Conclusion

56Having completed the hearing, I continue to be of the view that many of the concerns the union has raised stem from the language used in the employer’s written policy (as set out in the Guide), the consent form, rather than from its actual practice. Some of the provisions in the documents are not consistent with how the employer acts. It is apparent to me that the actual administration of the program, as described by employer counsel, does not suffer from many of the flaws the union is concerned about. The union’s concerns it seems, arise mainly because of the language used in the Guide and the consent form. The union pointed out, and I agree, that some of that language is open to interpretation by managers in a manner that may not protect the privacy of employee health information in compliance with the principles in PHIPA and FIPPA, which the employer has committed to follow. For example, based on the wording, by signing the form, the employee consents prospectively that the employer may contact medical professionals to seek clarification of information they had provided. Employer counsel assured that in practice, if such clarification is needed, a new consent is requested from the employee, and that the first form is not to be used again for any purpose.

57Employer counsel assured that in practice, the employer does not interpret the words in a manner broader than what is consistent with the law. While that assurance no doubt is genuine and sincere, the problem is that the implementation of the process set out in the Guide and the consent form is in the hands of numerous local managers who are not necessarily well versed with the corporate employer’s expectations or the legal limitations on what consent may be requested from employees. Therefore, in my view, to a large extent, resolution of the disagreements relating to employee consent would be possible by changing the written words to be consistent with the employer’s expectation in actually implementing the consent process.

58When I realized this during the first day of submissions, I expressed my view to counsel. In response, on the second day of hearing, employer counsel presented a draft consent form, amending the language. While union counsel acknowledged that the new draft addresses some of the concerns, he submitted that it did not “go far enough”, and does not address all of the union’s concerns.

59The questions posed to the Board are very general. Answering those general questions by applying legal principles in statutes and arbitral jurisprudence will not necessarily dispose of the specific disagreements between the union and the employer about particular policy documents and consent forms and employer practices. Therefore, the Board will attempt as best as it can, to apply the legal principles to the specific issues argued by the parties. To lay a foundation for that, I have deliberately set out in great detail, the particular issues in dispute and the submissions of the parties on those issues. While it is my hope that this decision would result in the resolution of the issues in dispute, it is likely that there will still remain disagreement with regard to details and interpretation of the language in documentation, including the Guide and the consent form. As a general matter, there is no legal obligation on the employer to consult with the union in formulation of policy or in preparing documents to implement policy. However, it is in the interest of all concerned that disagreements and grievances be avoided to the extent possible. That would be best achieved if consultation occurs which would hopefully facilitate a common understanding of what the written words mean, and what the employer’s expectations are. To be clear, the suggestion is not to have a binding or enforceable agreement. The objective is to facilitate a cooperative relationship where both parties accept that privacy of health information is important, and work together to the extent possible to protect that important right recognized by arbitrators, courts and legislation.

60It must be recognized that while an employee’s right to privacy and confidentiality of health information is important, there is also a legitimate business interest in an employer in properly administering sick leave and benefit provisions in the collective agreement, and its duty to accommodate. Often there is tension between these two important and legitimate rights of the respective parties. The law has evolved over the years establishing certain principles that attempt to draw a reasonable balance between these competing rights.

61The leading arbitral authority on the subject is Re Hamilton Health Sciences Corp. (supra). Arbitrator Surdykowski observed at para. 20, that “The confidentiality 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”. He then reviewed the legal basis for an employer’s right to request confidential health information, and stated that what the employer is legitimately entitled to is “sufficient information” for the particular purpose, and that the extent of the entitlement would depend on the stage of the process the employer is engaged in, as well as circumstances of the particular case. Thus at para 25 and 27 he wrote:

25 As a matter of general principle in that latter respect, what is required is sufficient reliable information to satisfy a reasonable objective employer that the employee was in fact absent from work due to illness or injury, and to any benefits claimed (see, Arbitrator Swan’s comments in St Jean de Brebeuf Hospital v. C.U.P.E. Local 1101 1977 CanLII 2964 (ON LA), 16 L.A.C. (2d) 199 (Ont. Arb,) at pp. 204-206). As a general matter, the least intrusive non-punitive interpretive approach that balances the legitimate business interests of the employer and the privacy interests of the employee is appropriate

27 The several layers of legitimate employer interests suggest that there is more than one stage to the process that is engaged when an employee seeks the benefit of the sick leave provisions in a collective agreement. It also suggests that the employer will generally be entitled to less information at the initial stage than at a subsequent stage. The employer’s desire for more information, or its genuine concern for an employee’s well-being or desire to assist the employee, do not trump the employee’s privacy rights. Nor do questions of expediency or efficiency. In the absence of a collective agreement provision or legislation that provides otherwise the employer is entitled to know only that the employee is unable to work because she is ill or injured, the expected return to work date, and what work the employee can or cannot do. A document in which a qualified medical doctor certifies that an employee is away from and unable to work for a specified period due to illness or injury is prima facie proof sufficient to justify the absence. Unless the collective agreement (or less likely, legislation) stipulates otherwise, it will also be sufficient to qualify the employee for any applicable sick benefits for that period. To require more invites an unnecessary invasion of the employee’s privacy. In order to obtain additional confidential medical information, the employer must demonstrate a legitimate need for specific information on an individual case-by-case basis. That is, for sick benefits purposes an employer has no prima facie right to an employee’s general medical history, a diagnosis, a treatment plan or a prognosis other than the expected date that the employee will be able to return to work with or without restrictions.

At par. 34-35, he sets out additional general principles as follows:

34. Further, the intensely personal nature of confidential medical information, the individual, societal and institutional interests in preserving the confidentiality of such information, and the protections that have been legislated to protect its privacy and use, suggest a conservative approach. Accordingly, collective agreement provisions that speak to the information that an employee must provide to the employer in order to satisfy the employee’s obligation to justify an absence or to obtain STD benefits in that respect should be strictly construed.

35 In the first instance for STD benefits purposes, therefore, in the absence of statutory or collective agreement authorization an employer cannot require an employee to consent to the release of more than certification that she is absent and unable to work because she is ill or injured, the general nature of the illness or injury, that the employee has and is following a treatment plan (but not the plan itself), the expected return to work date, and what work the employee can or cannot do. The consent must be both focused on the particular purpose and limited to the particular medical professional. A consent that must be provided for the purpose of STD benefits should not include return to work accommodation considerations other than whether there are likely to be any restrictions on the anticipated return to work date. A “basket” consent that purports to authorize anyone who the employer may ask to release confidential medical information is not appropriate. Nor is it appropriate to require an employee to sign a forward-looking consent that may exclude her from the confidential medical information loop. The overwhelming weight of the arbitral jurisprudence takes a dim view of consents that purport to give an employer prospective permission, particularly where the consent purports to permit the employer to unilaterally (with or without notice to the employee) initiate direct contact with a doctor or other custodian of confidential medical information. Every contact should be through or at the very least with the knowledge and consent of the employee, a separate consent should be required for every contact, and every consent should be limited to the completion of the appropriate from or the specific information required, as appropriate.

62Relevant in this proceeding also are the following principles set out at para. 63:

Fourth, an undertaking to hold all medical information obtained confidential is appropriate, but the employee should not at the same time be required to consent to the disclosure of more information that the Hospital is entitled to. Disclosure should be limited to that expressly authorized by the employee or as required or permitted by law. Fifth, the employee should never be cut out of the communication loop. Direct contact between the employer (or its third party agent) and the employee’s medical caregivers without the employee’s knowledge or consent is prohibited. In order to give the employee an opportunity to object, the employee should be advised in advance of any such communication in any event.

63It is also accepted that an employer is not entitled to seek a prospective consent. In Re Greyhound Canada Transportation Corp, (supra) at para. 25-26, arbitrator Levinson wrote:

25 The PAF also includes an Authorization. This qualitatively differs from the notion of an employee providing information on a form to prove a sick leave benefit claim. The mere fact that the Authorization is on the PAF does not fundamentally change its character. I find the present Authorization to be problematic in a number of respects, and invalid. By requiring an employee to sign a prospective Authorization in advance of a reasonable basis for further specific information, the Company is effectively bypassing the necessity of having reasonable grounds to legitimately seek further confidential medical information about a sick leave claim. More particularly, the Company is effectively bypassing the necessity to first request from the employee, and then clearly explain what additional specific information it requires to address any reasonable concern(s) it may have, about a particular claim, where appropriate. This materially differs from what I understand is currently occurring. When information provided by the employee’s physician is considered to be insufficient to justify the payment of sick benefits, the Company’s physician requests that the employee’s physician provide a copy of the chart note, pursuant to the Authorization to “verify” the medial illness. The collective agreement does not authorize or reasonably support this intrusive action.

26 Also, the possibility that additional information may be reasonably required at some later point, the theoretical potential for expediency, and any confidentiality safeguards and protections in place do not demonstrate that the prospective release of confidential medical information the Company is seeking through the Authorization is reasonably required, at first instance, and does not outweigh an employee’s privacy rights in that regard.

64With the foregoing general principles in mind, the Board turns to the questions put before it.

Question 1:

In order to be able to provide informed and knowledgeable consent, the employee must be informed of what I will call the three “w’s”, as precisely as possible. That is the who, what, and why. First, the particular medical professional from whom health information would be requested, and anyone with whom the information would be shared must be identified. Second, the employee must be informed clearly, what health information would be requested. And finally, there must be an explanation of the purpose or purposes for which the information is required. If, and only if, applicable at the time, more than one purpose may be set out in the same form, provided the purposes are clearly identified.

65Question 2:

There is no legal requirement that a manager or HR Specialist have a face to face meeting with every employee who is provided with a consent form. As long as the information as set out in the answer to question 1 is provided to the employee, it is sufficient to provide the contact information for the HR Specialist, and advise that any questions or concerns may be directed to him/her.

The employer may use a consent only for the purpose or purposes specifically identified in the consent form. If it becomes necessary to use health information for any other purpose, a new consent would be required. It is inappropriate to use “and/or” in describing the purposes. The employer is not entitled to seek prospective consent because of the possibility that information may become necessary for an additional purpose in the future. At the time of consenting the employee must know the present purpose or purposes.

66Question 3

The consent form currently in use is too broadly worded. It should be amended to be consistent with the requirements set out in the answers to question 1 and 2 above. It must be ensured that any references in the cover letter to the three “w’s”, are consistent with the information in the corresponding consent form. Since the form makes reference to the cover letter, it would be confusing to the employee, if the manager uses language in the cover letter that may be interpreted as broader than what is set out in the form itself.

I agree with the employer that it is not practical to obtain a new consent every time a manager or HR Specialist who is absent is temporarily replaced. However, the employer must advise the employee of the employer’s need and intention to share health information with a replacement and identify that individual by name and title. This would enable the employee to revoke the consent if he/she does not wish the health information to be shared with the individual replacing the manager or HR Specialist. If and when it becomes necessary to share health information with HR or legal services in order to seek advice, or to obtain approval from senior management with delegated authority, the employee should be informed of the title or office only of the person with whom information will be shared. The employee’s consent would not be required for the employer to be able to do so.

67Question 4:

I will not address the broad issue in items (a) (b) and (c) since they relate to what health information the employer is entitled to. Under (c), however, there was an issue raised about consent. While the employer may ask the doctor generally, whether the employee is able to return to work with or without accommodation, it cannot request consent to seek specific information such as physical or mental capabilities, limitations and restrictions unless and until a doctor indicates that the employee may return only with accommodation.

68Question 5

No. Separate consent forms are not required for different purposes, as long as the form is designed in a manner that clearly identifies the purpose or purposes of the particular request for health information. The “check off” system in the draft consent form could be fashioned to meet this requirement.

69Question 6

As I understood employer counsel, the employer’s practice is to obtain a new consent every time further clarification of health information is required. While this practice is not reflected in the current form, the practice would in fact exceed the standard required in current arbitral jurisprudence. Thus in Re Canadian Bank Note Co. (supra) at para.39, arbitrator Surdykowski wrote:

39 An employee cannot be required to sign a forward-looking consent that may exclude him from the confidential medical information loop. A consent which purports to do so or which gives the employer prospective permission to access an employee’s confidential medical information is prima facie inappropriate, particularly where the consent purports to permit the employer to initiate direct contact with a doctor or other custodian of confidential medical information without notice to the employee. Although I wrote in Hamilton Health Sciences Corp (and in Providence Care mental Care Corp., at paragraph 38) that a separate consent should be required for every contact, I am now persuaded (by Central Care Corp., at paragraph 38) that a separate consent is not required for every communication with the specifically identified medical health professional identified in the consent. However, every contact with the medical health professional should at least be with prior notice to the employee of the intended contact and its purpose, and be limited to what is reasonably necessary in the circumstances.

In Re Sunnybrook Health Sciences Centre, (supra), at para. 42 arbitrator Knopf wrote:

Secondly, the form promises that the OHS Department will advise the employee if the supplemental information is required from the doctor after the completed form is submitted. The Occupational Health and Safety Department has been advising employees when additional information and/or clarification has been sought from doctors. This is appropriate. However, for the consent to be meaningful, the employee should be advised that additional information is being requested and why it is being requested before the doctor is contacted directly. That will allow the employees to revoke their consent “in writing” if they so choose. To advise employees after the fact makes the ability to revoke the consent academic.

70Question 7

Yes. The consent form should be directed to a specific and identified health care provider. The consent is not to be used to contact anyone other than that individual. The union indicated that it has no concern about the consent form or the employer’s practice in this regard.

71Question 8

A consent, even in the absence of a specific expiry date, would not be legally binding indefinitely, since the employee in any event has the right to revoke his consent at any time. The consent form in use, while not identifying a temporal time limit, is time limited in effect since it is of no force after one use. The employer has accepted that a consent form may not be used more than once.

72By way of remedy, the employer is directed to change its practices and processes to be in compliance with this decision as necessary. In addition, the relevant documents used including the Guide, the consent form, the cover letter etc. should be amended to be consistent with the actual practices, so that the employee would clearly be aware of what exactly he/she is consenting to and how the employer would be sharing the information. This would also assist to achieve consistency in the implementation of policy and practice by managers and HR Specialists throughout the province.

73The Board remains seized of the grievance. The hearing will continue as scheduled to deal with any further issues the parties may wish to put before the Board.