In Greyhound Canada Transportation Corp. (2011), 213 L.A.C. (4th) 433 (Levinson), the employer required employees, as a pre-condition to payment of sick leave, to provide the employer with a completed Physician Assessment Form. The agreement was silent regarding the content of the form. The arbitrator found that the form requirements should be strictly construed in “a manner consistent with the well-established arbitral and court principles relating to the disclosure of confidential medical information.” He concluded that “the required disclosure of confidential medical information at the outset of any sick leave claim should not be broader in scope than what is reasonably necessary, in any particular case, where the issue is the legitimacy of the claim.” He found that
the overly intrusive and broad scope of confidential medical information that the [employer] is requiring on [the form] goes well beyond what has not been demonstrated to be reasonably required, at first instance. This includes diagnosis, treatment and prognosis. 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 confidential medical information that the [employer] is seeking through the [form] is reasonably required, at first instance, and does not outweigh an employee’s privacy rights in that regard. The routine requirement of information such as diagnosis, treatment and prognosis at the outset of a sick leave claim ignores the continuum pertaining to the detail of medical information that may be required to support a sick leave claim.
The arbitrator commented that it would not have been improper for the form to have required “… the provision of a reason for absence, by way of a general statement about the nature of the sickness, without details about diagnosis or symptoms.”
In support of the foregoing, the arbitrator summarized the law as follows:
An individual’s right to privacy with respect to confidential medical information is significant, and is not lost simply because of employee status … For sick leave benefits, an employee has an onus to prove entitlement to such benefits. To that end, and subject to the collective agreement or applicable legislation, an employee must provide sufficient proof that the absence from work on account of sickness is legitimate. This can include a medical certificate from a qualified treating physician certifying that an employee is unable to attend work for a specified period because of illness or injury, the expected return to work date, and any applicable work restrictions. Prima facie, such a certificate would be sufficient to establish a legitimate entitlement to sick leave. Conversely, a unilaterally imposed precondition by an employer for the payment of any sick leave that requires a medical certificate that includes a diagnosis, treatment plan or prognosis has generally [been] considered as being inappropriate, and an unjustified intrusion into an employee’s right to privacy, as it concerns confidential medical information.
The information an employee discloses that is necessary to establish an entitlement to sick leave benefits is generally more limited and less detailed, at first instance. If an employer is not satisfied with a treating physician’s documentation in support of an employee’s claim for sick leave, it must demonstrate that it has reasonable grounds to request additional specific information to address its particular legitimate concern(s) related to the absence and sick leave claim. In that regard, an employer must clearly explain the reason(s) to the employee.
The Physician Assessment Form contained a clause authorizing the release of “all medical information that is relevant to establishing … fitness to work and or level of disability.” The authorization was held to be invalid:
By requiring an employee to sign a prospective Authorization in advance of a reasonable basis for further specific information, the [employer] is effectively bypassing the necessity of having reasonable grounds to legitimately seek further confidential information about a sick leave claim. More particularly, the [employer] 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 [employer’s] physician requests that the employee’s physician provide a copy of the chart note, pursuant to the Authorization to “verify” the medical illness. The collective agreement does not authorize or reasonably support this intrusive action.
The employer had argued that section 239.1(1) of the Canada Labour Code and section 24 of the Canada Labour Standards Regulations provided sufficient statutory authorization to enable the employer to compile the information that it sought. The arbitrator dismissed this argument, for the employer’s actions here pertained to sick leave benefits rather than a work related illness or injury as contemplated by the Code.