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 Senior Counsel

HEARING

August 3, 2017; February 7, March 26 and April 26, 2018

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. This decision relates to the third issue put to the Board, which is about the appropriate scope of the employer’s right to collect and retain employee health information.

3The focus is on the Health Information Program Guide, February 2015 (“the Guide”), a document unilaterally created by the employer setting out its need for employee health information, how it collects and maintains that information, and the related duties and responsibilities of the parties. By way of written particulars the union raised concerns in relation to certain provisions of the Guide, and how the employer implements them. At the hearing union counsel made submissions, as to the basis for its concerns. On agreement, the parties posed six questions to be answered by the Board.

4The union’s concerns may conveniently be discussed under three topics.

(A) The definition of the term “Health Information” in the Guide. The union takes the position that the definition is too narrow, and inconsistent with The Personal Health Information Protection Act (“PHIPA”) and The Freedom of Information and Protection of Privacy Act (“FIPPA”). It alleges that the definition in the Guide could lead to inappropriate and unnecessary disclosure of health information. Moreover, it inappropriately suggests that there may be exceptional circumstances where diagnosis may need to be disclosed to the employer.

(B) Retention of health information. The union objects to the provision in the Guide to the effect that the employer may retain health information for a minimum of 50 years pursuant to the provisions of The Archives and Record Keeping Act and takes the position that the employer has no authority to apply this legislation to health information of OPS employees.

(C) Secure document management processes. The union takes the position that the Guide allows the sharing of employee health information with numerous individuals, including managers. Since there could be a high level of turnover at the management level, it would result in more and more individuals having access to employee health information. The union submits that given the private nature of health information, there should be only one central source where it is held. Under the existing process, there are two files where an employee’s health information is kept, the corporate file held by the Disability Specialist, and a manager’s file, kept by the employee’s manager in his or her office.

5UNION SUBMISSIONS

Three questions are posed relating to the definition of “health information” in the Guide.

Question 1:

Is the definition of “health information” in the Guide too narrowly worded in violation of PHIPA/FIPPA, and privacy rights under the collective agreement? Could this wording result in unnecessary and in appropriate disclosure?

6The definition of health information objected to by the union is set out at para. 1.3 of the Guide as follows:

1.3 What is health information?

In the context of this program, health information may include prognosis (i.e., expected recovery time, prospect of recovery), capabilities, limitations, restrictions, and impact of medication and/or treatment that may affect an employee’s ability to attend work and/or perform essential job duties.

A diagnosis is not requested through this program. There may be however, exceptional circumstances where a diagnosis is disclosed (see Section 4.1 for exclusions).

The union points out that whenever the Guide refers to “health information”, it refers to that term as defined above. Specifically, when it makes provisions for protection and confidentiality only health information as defined would be protected. Counsel submitted that health information disclosed to the employer may include other types of information than those in the definition in the Guide. These would not be captured by the definition in the Guide, and therefore, not protected by the employer’s processes. Counsel contrasted the definition of “personal health information” in PHIPA at s.4.1, which provides:

4. (1) In this Act,

“personal health information”, subject to subsection (3) and (4), means identifying information about an individual in oral or recorded form, if the information,

(a) relates to the physical or mental health of the individual, including information that consists of the health history of the individual’s family.

(b) relates to the providing of health care to the individual, including the identification of a person as a provider of health care to the individual.

(c) is a plan of service within the meaning of the Home Care and Community Services Act, 1994 for the individual.

(d) relates to payments or eligibility for health care, or eligibility for coverage for health care, in respect of the individual.

(e) relates to the donation by the individual of any body part or bodily substance of the individual or is derived from the testing or examination of any such body part or bodily substance.

(f) is the individual’s health number, or

(g) identifies an individual’s substitute decision-maker.

Identifying information

(2) In this section,

“identifying information” means information that identifies an individual or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual.

Mixed records

(3) Personal health information includes identifying information that is not personal health information described in subsection (1) but that is contained in a record that contains personal health information described in that subsection.

Exception

(4) Personal health information does not include identifying information contained in a record that is in the custody or under the control of a health information custodian if,

(a) the identifying information contained in the record relates primarily to one or more employees or other agents of the custodian; and

(b) the record is maintained primarily for a purpose other than the provision of health care or assistance in providing health care to the employees or other agents.

7Counsel pointed out that the definition in PHIPA includes a much broader range of information than the items listed in the definition in the Guide. Section 4(2) of the Act includes information that could disclose the identity of the individual in the definition, and under section 4(3) more than strictly health information is included. The broad definition in PHIPA contemplates that even information such as the individual’s name, his or her doctors’ names and the dates of visits to the doctors would be protected as part of personal health information. The definition in the Guide does not capture any of that.

8Union counsel anticipated that the employer would assert that in practice much more than the items listed in the definition in the Guide is treated as health information and given protection. The union may not disagree. However, that is not an acceptable response. Counsel agreed that the Human Resources Specialist (“HR Specialist”) may be aware of the broad range of information required to be protected under PHIPA, and may act in compliance. However, he argued that the Health Information Program applies OPS wide. Hundreds of local managers throughout the province who have access to employee health information cannot be expected to be aware of the legislative requirements for protection of health information, and may simply follow the definition in the Guide, and limit protection to the specific items listed in it.

EMPLOYER SUBMISSIONS

9Employer counsel commenced her submissions with the position that while the employer has committed to protecting employee’s privacy in accordance with the “principles” of PHIPA and FIPPA, those statutes do not apply to the employer. Therefore, the employer is not bound by the exact definition in PHIPA. Counsel agreed that the definition in the Guide is narrower than in PHIPA. That difference is deliberate and appropriate. It acknowledges that for its employment related purposes the employer needs a much narrower range of health related information, than the broad range of health information required and collected by health care providers, such as hospitals, doctors and other medical professionals. A narrower definition of “health information” is more appropriate for the employer because it limits the disclosure of employee health information only to that required for employment related purposes such as short-term sick leave and sick benefits, operational planning, and accommodation of disabilities. Protection of privacy is thereby in fact enhanced by the narrower definition.

10Counsel argued that PHIPA does not apply to the employer as it relates to its employees, although s. 7(5) states that it “binds the Crown”. She pointed out that there could be organizations within the Crown, that provide health care through facilities such as Occupational Health departments or health clinics. The OPS does not provide health care in any manner. She argued that to find that the employer is bound by the definition of “Personal Health Information” in PHIPA, the Board must first find that the employer is a “health information custodian”. (HI Custodian”). She referred the definition of HI Custodian in s. 3 (1) of PHIPA. Reviewing each of the eight subsections of the definition, counsel argued that all of the individuals and facilities set out in the definition are in some way providing health care. The employer is not engaged in providing health care to its employees, and does not fit within that definition.

11Counsel drew my attention specifically to the “Exceptions” in set out in s. 3(3) of the Act. S. 3(3)2 provides that “A person who is authorized to act for on behalf of a person that is not a HI custodian”, is not a HI custodian, “if the scope of duties of the authorized person does not include the provision of health care”. Counsel submitted that the employer, not being a HI custodian, authorizes its HR Specialists and managers to act on its behalf with respect to health information provided by its employees. The HR Specialists and managers do not in any manner provide health care to the employees. They only carry out employment related functions. Therefore, under the exception they also are not HI custodians. Counsel submitted that by setting out the exceptions the legislature has drawn a distinction between health care providers and others who need health information for legitimate purposes other than provision of health care, including employment purposes.

12Employer counsel argued that even if the Board concludes that the employer is a HI custodian as defined in PHIPA, the information the employer collects from its employees is not “personal health information” as defined in the Act.

13Counsel relied on the exceptions set out in s. 41(1)(4) of PHIPA, and particularly s. 4(1)(4)(b). It is to the effect that, personal health information does not include identifying information contained in a record that is in the custody or under the control of a HI custodian if, … “the record is maintained primarily for a purpose other than the provision of health care or assistance in providing health care to the employees or other agents”. Counsel pointed out that this exception recognizes that a HI custodian may collect and use health information for different purposes. For example, a hospital may collect health information from patients for health care purposes, but also may collect health information from its employees primarily for employment purposes. The latter information would be excluded from the definition of “personal health information”, even though the hospital would be a HI custodian under the Act. The provisions of the Act would not apply with respect to health information collected from its employees for purposes not related to provision of health care. Similarly, the employer, even if found to be a HI custodian, would not be bound by the definition of “personal health information” under the Act because the information it collects from its employees is exempted under the Act. Reliance was placed on statements in the affidavit of Ms. Margaret Cernigoj, Director of the Centre for Employee Health, Safety and Wellness to support the assertion that the employer does not provide health care to its employees.

14Employer counsel reviewed and made submissions on the following authorities: Re City of Kingston, (2010) 193 L.A.C. (4th) 420 (Starkman); Re Revera Long Term Care Inc. (2014) 246 L.A.C. (4th) 340 (Goodfellow); Re Myciak et al, G.S.B. 2010-2318 (Briggs); Hooper v. College of Nursery, 2006 ODC minicounsel 143, 81 O.R. (3d) 296 (Ont. Div. Ct.); Re Ontario Power Generation, (2009) O.L.A.A. No. 348 (Etherington); Re London Health Sciences Centre, (2016) O.L.A.A. No. 503 (Slotnick); Re Sunnybrook Health Sciences Centre, Ontario Information and Privacy Commission, October 29, 2013; Re Wyndowe (2003) FCA 39 (Federal Ct. of Appeal); Re London Health Sciences Centre, 2017 PHIPA Decision No. 44 (Ontario Information and Privacy Commission); Re Morris (2015) PHIPA Decision No. 15, Ontario Information and Privacy Commission, Re Mitchinson, 2001 OCA minicounsel 402, 55 O.R. (3d) 355 (Ont. Ct. of Appeal).

15The relevant provisions of FIPPA are as follows:

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;

42 (1) An institution shall not disclose personal information in its custody or under its control except,

(c) for the purpose for which it was obtained or compiled or for a consistent purpose;

(d) where disclosure is made to an officer, employee, consultant or agent of the institution who needs the record in the performance of their duties and where disclosure is necessary and proper in the discharge of the institution’s functions;

16Employer counsel referred to the following authorities in support of her position that FIPPA does not apply to the health information collected and used by the employer. Re City of Kingston, (supra) at para 58; Ontario (Solicitor General v. Mitchinson, (2001) CanLII 8582 (Ont. C.A.); Re Myciak, (supra); Re Keaney, GSB 2008-3041 (Harris); Re University of Ottawa, Ont, I.P.C Interim order PO 3502-I; and Re City of Ottawa, Ont. I.P.C., order MO – 3359.

17Union counsel, in reply, submitted that the union’s position is not to the effect that the employer must adhere to the exact definition of “personal health information” in PHIPA. Rather, the concern is that the employer, having represented to employees that it is committed to complying with the principles in the act, has adopted a narrow definition of health information which is inconsistent with the Act. As a result, all aspects of confidential health information that must be protected by the principles in the legislation may not be protected. Counsel submitted that in order to accept this argument the Board need not decide whether PHIPA is binding on the employer as a matter of law. The employer has represented to OPS employees that if they consent to the employer obtaining their confidential health information, that information will be protected in accordance with the principles in PHIPA. Having obtained employees’ confidential information, now the employer is in effect stating that it is free to pick and choose what information it will protect because it is not legally bound by the Act.

18Counsel argued that in any event, PHIPA does apply to the employer. The employer takes the position that the Act does not apply to it because it is not a “HI custodian” as defined in it. However, the Act in s. 7(1)(b)(ii) provides that when someone not a HI custodian receives personal health information from a HI custodian that information is protected. The employer receives health information from health professionals, hospitals etc., who are HI custodians. Therefore, that information is protected.

19Counsel also pointed out that s. 7(5) of PHIPA explicitly provides that the act applies to the Crown. He pointed out that s. 3(1) of PHIPA sets out a list of HI custodians. S. 3(1)(7) lists the Minister of Health and Long-term Care as a HI custodian. Counsel submitted that it would be anomalous that the legislature would make only one ministry which is part of the crown a HI custodian, but not other ministries and agencies of the Crown. It would mean that employees of one ministry of the crown would have better protection of health information than other OPS employees.

20Union counsel argued that in any event case law supports a finding that apart from the statutory protection in PHIPA, employers are required to protect confidential health information of employees. Reliance was placed on the judgement of the Ontario Divisional Court in Hooper v. College of Nurses, (supra); Re Hamilton Health Sciences, , 167 L.AC. (4th) 122 (Surdikowski); Re Ontario Power Generation, (supra); and Re London Health Sciences (supra), Counsel submitted that in the latter two decisions the arbitrators recognized an obligation to keep health information confidential quite apart from the requirements of PHIPA. The Board was urged to follow Hooper and the arbitral decisions. Counsel submitted that therefore it is not necessary for the Board to decide whether FIPPA applies to the employer to answer the question put to it.

ANSWER

21For reasons that follow, in my view it is not necessary to determine whether as a matter of law, the employer is a HI custodian within the meaning of PHIPA, and whether the Act is binding on it. Assuming that to be the case, I find that the exception is s. 4 (1) (4) (b) of PHIPA applies, and consequently the health information obtained by the employer does not constitute “personal health information”, which attracts the protections prescribed by the Act. S. (4) (1) (4) (b) is to the effect that identifying information contained in a record that is in the custody or under the control of a health information custodian is not personal health information, if “the record is maintained primarily for a purpose other than the provision of health care or assistance in providing health care to the employees or other agents. (emphasis added). Therefore, it is necessary to examine the facts to determine whether the “primary purpose” for which the employer collects health information relates to provision of health care to its employees.

22“The primary purpose” of health information is a question of fact, which must be determined on a case by case basis. In Hooper (supra) the court held that the exception in s. 4 (4) (b) did not apply because the hospital was providing “health care” within the meaning of s. 2 of PHIPA to its employees. In so finding, the court relied on a number of factual findings. It found that the file in question “was not primarily an employment file. It was maintained by the Occupational Health and Safety Department, not a human resources department, and a number of the documents were created for a health related purpose”. (para 25). It found that in addition to a report from the employee’s personal physician, the file contained “assessments of her condition by the OHS physician, as well as observations about her health and behaviour made by members of the department”. (para. 26). It was found that the employer hospital, through its OHS Department, (which employed physicians) was “making observations and assessments for a health related purpose in order to evaluate her physical and mental condition and to determine if and how she could return to work safely”, (para. 27). The court referred to the employer’s own evidence that the OHS Department was required to determine whether the employee had a medical condition that impacted her fitness, and decide whether to clear her to return to work, with or without limitations.

23In Re London Health Sciences (supra), the grievances were filed by nurses employed by a hospital Occupational Health Department. The evidence was that the department was involved in functions such as ensuring that prospective employees do not have communicable diseases, administering first aid and vaccinations and doing annual tests for employees. The department also cleared employees to return to work following absences due to infectious diseases. The department employed a number of physicians, registered nurses and registered practical nurses, and employees attended at the department to have health assessments done. The union argued that the information in the custody of the hospital was protected by PHIPA “given the wide definition of “health care” the Act, since the occupational department is conducting observations, examinations, and assessments aimed at maintaining or promoting the employees’ health, to use some of the words in the Act’s definition of health care”. (para. 21).

24The employer’s position is set out at para. 29:

29 The hospital in the case before me now argues that I am not bound by this decision, and in any event, it is distinguishable. It says the hospital’s occupational health department is doing nothing to “diagnose, treat or maintain an individual’s physical or mental condition,” to use the words of the Act’s definition of health care. Instead, it is performing tasks such as assessing whether employees are entitled to sick pay, or assessing whether and with what restrictions disabled employees can return to work. That must mean that the files are “maintained primarily for a purpose other than the provision of health care,” and therefore fall within the Section 4 (4) exception to the definition of “personal health information.”

25Following the court decision in Hooper, arbitrator Slotnick held that PHIPA applied. He wrote that the court had decided that the Act applies to “files of the type at issue here”, even though the employer’s files “are not kept “primarily” to diagnose, treat or maintain employees’ health”.

26In London Health Sciences Centre (supra), the Ontario I.P.C. was faced with complaints by an employee that his employer had used or disclosed his personal health information contrary to PHIPA. In concluding that the exception in s. 4 (4) applied, the commission at para. 114 wrote:

114Section 4(4) excludes from the definition of “personal health information” identifying information in a record in the custody or control of a health information custodian, where the information relates primarily to employees or agents of the custodian, and the record is primarily maintained for a purpose other than health care to agents or employees. The purpose of the email of October 29, 2012 was not about the provision of health care to the complainant, but about managing the workplace implications of his illness. The email is a record that contains identifying information that primarily relates to the complainant in his capacity as an agent of the hospital. Further this record is maintained primarily for a purpose other than the provision of health care or assistance in providing health care to the employees or other agents of the hospital. As such, I find that the information about the complainant in this email is not “personal health information” and the rules in the Act about the use or disclosure of personal health information do not apply.

27It is apparent, therefore, that in each of those cases, the employer was found to be providing some form of health care to its employees. For that purpose it was held that “health care” is not limited to making a diagnosis. It was broader. There is no evidence that the employer in the instant matter provides any health care to its employees even in the broader sense. It does collect some types of health information related to employees, but the purpose is not in any way related to provision of health care. The purpose is to deal with workplace implications of employees’ health issues on the rights and obligations under the collective agreement and legislation.

28Union counsel did not make specific submissions on how the Guide is in violation of FIPPA. I find, in any event, that there is no evidence, or even an assertion, that the employer was using personal information for any purpose other than the employment related purposes for which it was obtained. Therefore, there is no basis to find that the Guide is in violation of s. 41 or 2. 42 of FIPPA, assuming that the Act binds the employer.

29It follows that the answer to both parts of question 1 is in the negative.

30Question 2

Is it permissible for the employer to reference diagnosis in the definition, and are there any circumstances in which diagnosis should be required or disclosed, including the circumstances set out in s. 4.1 of the Guide?

S. 4.1 of the Guide is as follows:

Section 4: Other

There may be occasions where additional health information is necessary, such as:

4.1 Diagnosis

There may be circumstances where a medical diagnosis is required or disclosed. These instances include the following:

(a) A workplace insurance claim or appeal (WSIB).

(b) An appeal for the insurance carrier’s Long-Term Income Protection (LTIP) benefits decision.

(c) Where an employee has an interactive pathogen and may be at risk of transmitting it to the public.

(d) Where the employee initiates disclosure to ensure comprehensive employment accommodation planning for his or her disability.

UNION SUBMISSIONS

31Union counsel pointed out that in s. 1.3, following the definition of health information, the Guide explicitly states that “A diagnosis is not requested through this program”, but goes on to refer to exceptional circumstances set out in s. 4.1 of the Guide where disclosure of diagnosis may be necessary. The Guide at 4.1 provides that in some circumstances including those listed, a diagnosis may be requested or disclosed. Pointing out again that there are hundreds of local managers in the OPS, counsel argued that some may find the Guide to be confusing in this area. He relied on section 30(2) of the PHIPA which states, “A health information custodian shall not collect, use, or disclose more personal health information than is reasonably necessary to meet the purpose of the collection, use or disclosure, as the case may be”. The Guide, as written, may lead managers to require disclosure of diagnosis when it is not reasonably necessary for employment purposes.

32Union counsel expressed particularly strong objection to item (d) under section 4.1 of the Guide, claiming that it suggests that if employees are to get comprehensive accommodation, it may be necessary to disclose diagnosis. Counsel pointed out that an employee is entitled by law to comprehensive accommodation in every case. The Guide suggests that in every case where an employee seeks what he/she is entitled to by law, it is necessary to volunteer disclosure of diagnosis.

EMPLOYER SUBMISSIONS

33Employer counsel pointed out that throughout the Guide there are clear statements that disclosure of diagnosis is not required. Examples provided in (a) (b) and (c) are simply intended to provide useful information to the effect that in processes outside the employer’s disability management program, there may be circumstances where employees may be required to disclose diagnosis. Counsel submitted that this information is not inconsistent with the clear position in the Guide that for the purposes of its disability management program the employer does not require disclosure of diagnosis.

34Counsel submitted, citing Bottiglia and Ottawa Catholic School Board, 2015 HRTO 1178, and Re Complex Services, (2012) 217 L.A.C. (4th ) 1 (Surdykowski), that in rare cases, an employer may be justified in seeking information about diagnosis. Item (d) is a recognition of that possibility. Counsel pointed out that even in these rare cases, the diagnosis will only be received by the HR Specialist, and managers would receive only the information needed for the particular employment issue to be addressed.

35In reply, counsel reiterated that the union’s concern is about the inconsistency of the Guide stating on the one hand that disclosure of diagnosis is not required, and at the same time suggesting that such disclosure may be necessary to obtain comprehensive accommodation. He submitted, citing authorities, that in the rare cases where requiring information on diagnosis has been allowed, it was done following a complex and detailed balancing of the privacy rights of the employee and the employer’s need for information on diagnosis in the particular circumstances. Item (d) is couched in broad language, which could easily be read to mean that disclosure of diagnosis may be necessary to obtain comprehensive accommodation.

ANSWER

36I first turn to items (a) (b) and (c) of section 4.1, which the employer acknowledges are related to processes outside its program, and are included in the Guide simply as useful information. Given the many clear statements in the Guide that the employer does not require disclosure of diagnosis, a sophisticated reader would not consider these “exceptions” as inconsistent. However, I agree with the union that some local managers reading s. 4.1 by itself may misconstrue the intent. I agree with employer counsel that if that happens and a manager requires diagnosis information, a grievance can be filed. However, the whole purpose of this exercise of the Board undertaking to answer these questions is to avoid grievances. Therefore, if the employer continues to be of the opinion that the information in items (a), (b), and (c) although unrelated to its program, should remain in the Guide about its program, I recommend that in 4.1 itself language be included to make it clear that while the employer does not require diagnosis, it may be required in processes not administered by the employer and outside the employer’s program, before setting out the exceptions (a), (b), and (c).

37I agree with the union that item (d) may be misinterpreted to mean that in any request for comprehensive accommodation, the employee may be required to include diagnosis in his/her disclosure of health information. It is not clear to me even at this point what is meant by “comprehensive” accommodation is. A disabled employee in every case is entitled to comprehensive accommodation if it can be provided short of undue hardship.

38Therefore I recommend that the language in item (d) be replaced with language to the effect that there could be very rare and complex accommodation situations where disclosure of diagnosis may be required, despite the general rule. This would be consistent with the arbitral law, and should also serve the interests of the employer, while providing useful information to employees.

39Question 3

Does the employer have authority to retain employee health information in accordance with the Archives and Records Keeping Act?

Question 4

For what period of time does the employer have authority to retain health information?

40It is convenient to deal with questions 3 and 4 together since they relate to the same issue about the period of time the employer is entitled to retain employee health information. The employer considers itself bound by Archives and Records Keeping Act. (“ARKA”) and has developed policy on how documentation is retained. This includes retention of health information in the corporate file for a period of fifty years after the termination of an employee’s employment. The union objects to this practice and argues that provisions of the ARKA cannot override the protections in privacy legislation.

41Counsel referred to s. 37(1)(a) of PHIPA and s. 41(1)(b) of FIPPA to argue that the employer is entitled to use health information only for the purposes for which consent was obtained. He argued that once an employee’s health issues are resolved, the purposes for which health information was collected do not exist any longer. Therefore, it is inappropriate to retain that information. In any event, there would be no purpose for keeping the health information after an employee ceases to be employed in the OPS.

42The ARKA is not an employment related statute. Even if I reject employer counsel’s submission that this Board lacks jurisdiction to interpret it and hold that it does not apply to the employer, in this proceeding it is not necessary to engage in that inquiry. The provisions of PHIPA and FIPPA the union relied on are to the effect that health information may be used only for the purposes for which it was collected. Neither provision addresses the length of time such information may be retained. The union’s argument that if the information has no use there is no necessity to retain it is logical. However, that retention, whether exercised to be in compliance with a statutory obligation or in the exercise of management rights, does not violate any statutory provision or the collective agreement, as long as the information is not used for a purpose other than the purpose for which it was collected.

43However, I find merit in one aspect of the union’s objection. That has to do with employee consent. Employees are entitled to be informed that if they consent to disclosure of health information, that information will be retained in the corporate file for fifty years following their termination of employment with the employer. That would satisfy the principle that consent must be knowledgeable. Knowing that any information disclosed will be retained long after he/she is no longer employed in the OPS, the employee would be able to make an informed decision whether to consent.

44The answer to questions 3 and 4 in summary is that, subject to the observation in para. 43, in the absence of any restrictions, statutory or collective agreement, the employer is entitled to retain health information in the exercise of its management rights, provided of course that such retention is secure and does not lead to disclosure or use of the information contrary to the principles reviewed in different phases of this proceeding.

45Questions 5 and 6 posed to the Board are also closely related and may be conveniently dealt with together.

Question 5

Should an employee’s private health information be shared with managers, including each new manager the employee must report to?

Question 6

Should the employer be required to maintain all private health information in one single consolidated source, rather than in multiple sources, in order to protect confidentiality?

46The relevant provisions of the Guide are as follows:

Corporate Human Resources File

All original health information attained through this program is to be retained in the employee’s corporate HR file, separate from other HR information, in a sealed envelope. The envelope will be marked “Confidential Health Information” and access to it is restricted to employer staff on a need-to-know basis as indicated on the employee’s consent. They must sign the envelope or access record stating when, why and what they are accessing.

Case Management File

Health information returned to the HR Specialist through this program (e.g., request for employee health information forms) will be retained in the case management file either electronically or in hard copy. HR specialists access electronic files in the case management system with secure login. Hard copy files must be stored securely by the HR specialist in a locked filing cabinet and, where possible, in a restricted office.

Original health information returned to the HR specialist must be sent to the employee’s corporate HR file in a sealed envelope marked “Confidential Health Information” for safekeeping.

Manager’s Working File

Health information that is provided to the employee’s manager for the purposes of short-term sick leave entitlements and employment accommodation, including return to work planning, must be stored securely by the manager in a locked filing cabinet and, where possible, in a restricted office. It must not be left in locations where others (without authority to view the information) could have access to it. Health information that is sent or keep electronically must be password protected and/or encrypted where possible.

Original health information (e.g., medical certificates) that is no longer required for the purposes for which it was collected must be sent to the employee’s corporate HR file in a sealed envelope marked “Confidential health Information” for safekeeping.

If the employee is no longer assigned to a program area, the manager must ensure that all original health information in the manager’s working file is sent to the employee’s corporate HR file in a sealed envelope. Copies of health information must be destroyed in a secure manner. If the manager leaves the program area, he or she should advise the employee that his/her information will be provided to the incoming manager.

UNION SUBMISSIONS

47Union counsel reminded that the test in dealing with health information is “least intrusive”, and not convenience. He argued that placing health information in multiple files results in greater risk of improper exposure. To minimize that risk there should be only one file containing employee health information held in the custody of the HR Specialist. If a manager requires any information, that can be obtained through a verbal discussion with the HR Specialist, who is the expert. The HR Specialist would convey only the information necessary for the particular purposes.

48The union makes strong objection to managers keeping a working file in the manager’s office. He submitted that local managers may not be well versed with the legal requirements relating to privacy of health information. This would be of greater concern when there is turnover of managers, and when managers are back filled for periods of leave and vacations. The individual backfilling on an acting basis could sometimes be a colleague of the employee. It could be a different person backfilling each time. Thus multiple individuals would have access to health information. This could be avoided by eliminating the manager’s working file and requiring managers to verbally obtain information from the HR Specialist if and when needed. Counsel referred to authorities that recognize the importance in modern society of protecting the privacy of health information, and support the “least intrusive” standard. For those reasons, union counsel urged the Board to answer question 5 in the negative, and question 6 in the affirmative.

EMPLOYER SUBMISSIONS

49Employer counsel reviewed the various provisions in the Guide that are designed to protect health information. She emphasized that the Guide states that “health information is provided to the employee’s manager for the purposes of short-term sick leave entitlements and employment accommodation, including return to work planning”. Regardless of statutory or collective agreement requirements, the employer agrees that it has an obligation to share health information only if reasonably needed for legitimate purposes. The employer therefore provides a manager only the information needed by the manager to make employment related decisions This information is limited to a medical note from a medical professional that the employee is unable to work for a specific period due to illness or injury, or that the employee has specific restrictions due to illness or injury. The manager’s working file would include only that information. The rest of the health information would be held securely in the custody of the HR Specialist.

50Counsel submitted that if the manager is replaced by another, the latter must have access to that same limited information in the manager’s file in order to carry out his/her employment related obligations to employees, which he/she takes over from the outgoing manager. Without that information the manager would not be able to comply with legal obligations, and would be exposed to human rights and health and safety liability. The Guide has made provisions to ensure that the health information in the manager’s working file is kept secure with the holder of the manager position. Counsel referred to the following principles set out by the Board in Re O’Reilly, GSB 2010-1563 (Keller) at para. 4 offered “to assist the parties in future”:

1. If the release of the information was for bona fide operational needs, the employer would be within its right to do so. Conversely, if there was no operational requirement no disclosure can be made.

2. If there were operational requirements, (i.e.) required for the health and safety of the employee, co-workers or inmates, the disclosure must be limited to those who have a need for the information and further limited to the minimum disclosure needed to meet the operational requirement.

Counsel submitted that the employer’s process as set out in the Guide complies with those principles.

51Counsel pointed out that the Guide only provides that a new manager replacing a manager leaving a program area would have access to the manager’s working file. It does not state that a bargaining unit employee acting during a manager’s absence would have that access. The union has not asserted that there has been any occasion when health information had been accessed by another bargaining unit employee replacing a manager during a short-term absence. If that happens, it is open to the union to grieve.

52In relation to question 6, employer counsel relied on her submissions on question 5. She submitted additionally that there is no provision in the collective agreement, and there is no law, to the effect that health information can only be maintained in one central location. She submitted that PHIPA, as well as FIPPA contemplate that different individuals within an organization would have access to health information, provided that access is given only to the extent reasonably necessary for those individuals’ purposes.

ANSWER

53In determining what is “least intrusive”, it is not appropriate to disregard the employer’s need for information for legitimate purposes. There has to be a balancing of the two interests. See, The Report of the Information and Privacy Commission of Ontario, IPC 194-051P (1995). Having regard to the information before me, I find that the provisions in the Guide represent a reasonable balance. A manager’s responsibility includes making decisions relating to issues of sickness benefits, accommodation and return to work. A manager has important legal obligations in that regard. Failure to fulfill those obligations could expose the employer to legal liability. Additionally that could put at risk the health and safety of the employee, and in some cases, of others in the workplace. The manager needs the limited health information to be able to carry out those obligations. Denial of that information would not benefit the employer or the employee. It should be noted that all health information is held by the HR Specialist. The HR Specialist forwards to the manager only the information a manager is legally entitled to.

54I do not agree with the union’s suggestion that the needed health information could be communicated verbally by the HR Specialist, without the manager having copies of the information in a file in the manager’s office. The manager’s responsibilities in relation to sick benefits, accommodation and return to work are significant and very important for the employee. Reliance on verbal communication in the circumstances would be totally unacceptable and could be dangerous. It could result in misunderstanding. For example, where restrictions are imposed on an employee’s abilities, any misunderstanding by the manager could put the employee at risk. Given the precautions for security put in place in the Guide, and given the undisputed fact that managers are provided only the very basic health information needed for a specific purpose, I conclude that the provisions of the Guide are appropriate.

55I also find that just as much as a manager is entitled to have that limited health information, a new manager replacing a manager is also entitled to the same information, if the need continues. For example, if an accommodation put in place by an outgoing manager has to be continued, the individual replacing that manager would take over the managerial responsibilities. This would include the duty to continue that to the extent necessary. This would not be possible without access to up to date information on the employee’s restrictions.

56It follows that the answer to question 5 is as follows. Yes, as long as the information is needed by the manager or a replacing manager for carrying out the managerial responsibilities related to legitimate employment related purposes such as short term sick leave, accommodation and return to work.

57The answer to question 6 is that there is no requirement that health information may only be held in one file held by the HR Specialist. However duplication should be only to the extent needed for legitimate employment related purposes, and only the information required by a manager for the particular purpose or purposes should be made available.

58Having answered the questions posed in this third phase of this proceeding, the Board remains seized with jurisdiction.