CHAPTER 1
BALANCING PRIVACY AND WORKPLACE INTERESTS
1:000 Introduction
1:100 Overview Page 9
1:200 Discussion of Principles Page 11
1:000 INTRODUCTION
This chapter provides a brief introduction to the issue of employee privacy and the manner in which that interest has been balanced against the employer’s workplace interests. These issues are dealt with in greater depth in Chapter 12 in the context of considering the admissibility of evidence compiled during the course of a surreptitious surveillance.
1:100 OVERVIEW
Arbitrators generally have accepted that employees have a right to privacy.1 They also have accepted that an employer’s workplace interests provide the employer with the right to inquire into matters related to workplace absenteeism and qualification for sick leave or other wage-replacement benefits. These competing interests are reconciled by requiring that employer incursions into an employee’s privacy be reasonable in the circumstances.2 This is accomplished partially by requiring that employers adopt a staged or incremental approach to seeking medical information, with a right to resort to a more intrusive approach in cases where the employer’s reasonable need for information was not satisfied by a less intrusive inquiry.3
An employee’s right to privacy may be further affected by the need to balance the interests of the parties during the arbitral process. The concept of natural justice (i.e., the right to a fair hearing) empowers or obligates an arbitrator in appropriate circumstances to order that an employee undergo a medical examination by an independent medical examiner, or, again where appropriate, to undergo a medical examination by a physician who has been retained by the employer to assist in the preparation and presentation of its case.4
Except in limited circumstances, an employee’s refusal to provide information that is reasonably required is not a disciplinable matter. An employee’s maintenance of a privacy right in these circumstances, however, can have other arbitrally countenanced consequences. These include non- payment of sick benefits or a refusal to permit the absent employee to return to work until satisfactory medical information has been provided.5
1 The source of this right is discussed extensively in Chapter 12.
2 The issue of reasonableness is considered in Chapter 7 (Medical Certificates) and Chapter 8 (Medical Examinations at the Direction of the Employer). A two-step reasonableness test, as it relates to the introduction of surveillance evidence, is
canvassed in Chapter 12 (Surveillance Evidence).
3 This requirement is discussed in Chapter 5 (Adopting an Incremental Approach to Seeking Disclosure).
4 See Chapter 8 (Medical Examinations at the Direction of the Employer), Chapter 9 (Medical Examinations Ordered by an Arbitrator) and Chapter 12 (Surveillance Evidence).
5 The consequences of an employee’s refusal to consent to provide necessary medical information or to undergo a medical examination is considered in Chapter 4 (Consent to the Release of Medical Information) and in Chapter 8 (Medical
Examinations at the Direction of the Employer).
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1:100 Balancing Privacy and Workplace Interests
Where an employee submits to a medical examination or provides medical information that could not reasonably be required, that evidence is admissible nevertheless. In the case of surreptitious surveillance evidence, the emerging view is that even where the surveillance offended the employee’s right to privacy, the surveillance evidence must be admitted in order to ensure that the principles of natural justice are met.
SUMMARY OF PRINCIPLES
1:101 The right to privacy has been characterized as a “fundamental right of employment law.” That right, however, is not paramount, but must be balanced against the employer’s rights and obligations. [Page 11]
1:102 An employer can intrude upon an employee’s privacy only if it has a legitimate business purpose for doing so. [Page 11]
1:103 Any such intrusion on an employee’s privacy must be reasonable, having regard to all the circumstances. [Page 12]
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1:100 Balancing Privacy and Workplace Interests
DISCUSSION OF PRINCIPLES
1:101 The right to privacy has been characterized by one arbitrator as a “fundamental right of employment law.”6 That right, however, is not paramount, but must be balanced against the employer’s rights and obligations.
An employee’s right to privacy and an employer’s need for information reflecting the workplace can come into conflict, particularly when personal information is involved. In seeking to balance the competing interests involved arbitrators have recognized that quite apart from situations covered by statute or a collective agreement an employer can require a medical examination if it has reasonable and probable grounds to suspect that because of a medical condition an employee is a danger to himself or others or is unfit to perform his or her job.7
And, as stated elsewhere:
The privacy right that attaches to medical information is not absolute. There is a tension between an employer’s right to or legitimate need for information in order to properly manage its business and the workplace, and to meet its statutory and collective agreement obligations, and an employee’s right to personal privacy.8
6 Rosewood Manor (1990), 15 L.A.C. (4th) 395 (Greyell). Statements such as these must be considered in the context of the legislation of the governing jurisdiction. For instance, this observation was made in the context of a broadly recognized privacy right set forth in the British Columbia Privacy Act. That legislation is discussed in Section 12:502 of this manual.
7 Hudson Bay Mining and Smelting Co. (Zochem Division) (2001), 93 L.A.C. (4th) 289 (Springate); relying on Brewers’ Warehousing Co. Ltd. (1982), 4 L.A.C. (3d) 257 (Knopf)
8 S.E.I.U., Loc. 1 Canada (2008), 174 L.A.C. (4th) 210 (Surdykowski)
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1:100 Balancing Privacy and Workplace Interests
1:102 An employer can intrude upon an employee’s privacy only if it has a legitimate business purpose for doing so.
There is no question that an employer has a continuing right to inquire into any absence from work and that an employee has a continuing obligation to account for any absence, including an absence alleged to be due to sickness … But in that context it is important to recognize that there is nothing inherent in the employer-employee relationship which vests in an employer a discretionary right to compel employees to compromise their right of privacy through the disclosure of personal medical information. In particular, that is not a discretion which falls within the retained rights concept which vests in an employer those rights coincidental with the management and direction of the enterprise and the work force which have not been bargained away. An employer can only intrude upon the privacy of an employee if it has a legitimate business purpose tied to the employer-employee relationship.9
From a business perspective, absenteeism can be costly. Under the majority of collective agreements, the employer is required to assume the cost of wage-replacement benefits. Efficiencies are lost, and employee morale can be affected by excessive absenteeism. Arbitrator Picher has commented on the impact of workplace absenteeism:
The seriousness of innocent absenteeism in the workplace cannot be minimized. It is an obvious irritant when services or production are disrupted or delayed because of the intermittent absence of employees caused by unpredictable illnesses, however brief. Often the cost in terms of disruption is compounded by the very real cost of sick-pay benefits incurred by the employer. The economic toll of innocent absenteeism can be enormous … It is not surprising, therefore, to find a number of means by which employers have sought to reduce the instances of innocent absenteeism among their employees … Accepting that in the spectrum of illness there is a grey area in which the willingness of an employee to attend at work will depend to some extent on a degree of tolerance to a minor discomfort, absent communicable disease, there may be situations in which an employer has a legitimate interest in seeking to deter employees from the decision to stay home. The object is to encourage that employee who would have a medical justification for not coming to work, but who could, with a minimum of discomfort nevertheless put in a productive day. 10
9 Rosewood Manor (1990), 15 L.A.C. (4th) 395 (Greyell), quoting from Victoria Times Colonist, unreported, February 12, 1986 (Hope)
10 Toronto (City) (1984), 16 L.A.C. (3d) 384 (Picher). This case considered an employer’s policy requiring that employees provide a doctor’s certificate once their level of absenteeism has exceeded a stated threshold.
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1:100 Balancing Privacy and Workplace Interests
1:103 Any such intrusion on an employee’s privacy must be reasonable, having regard to all the circumstances.
In the context of the benefits of sick leave and sick pay, an employer is entitled to require the employee to provide sufficient information to permit it to satisfy itself that a particular absence was for a bona fide sickness or disability. How searching that inquiry can become is a function of the particular facts. The inquiry must be reasonable. Where sick leave and sick pay are addressed in the collective agreement, the inquiry must be in accordance with the provisions of the agreement.11
Similarly, it has been determined that:
Whether a medical certificate ought to be required in the circumstances of a particular case remains a matter within management's discretion to be exercised reasonably and in good faith
…12
Among the circumstances that must be considered of course are the provisions of the collective agreement:
The issue must be decided not only on the issue of reasonableness of the prescribed medical certificates but also in the context of the language of the collective agreement governing the parties …13
Finally, the arbitrator’s role in addressing such competing interests
… is to endeavour to balance the legitimate interests of the employee and the employer. The employee has an interest in his/her personal privacy, free of unreasonable and excessive intrusion. The employer has an interest in protecting the safety of all its employees including the employee in question, and protecting the safety of the public, and the safety of its property.14
11 Rosewood Manor (1990), 15 L.A.C. (4th) 395 (Greyell) , quoting from Victoria Times Colonist, unreported, October 11, 1985 (Hope)
12 St. Lawrence Lodge (1985), 21 L.A.C. (3d) 65 (Emrich)
13 School District No. 5 (Southeast Kootenay) (2002), 107 L.A.C. (4th) 224 (Korbin)
14 Ocean Construction Supplies Ltd. (2005), 140 L.A.C. (4th) 257 (Blasina)
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1:100 Balancing Privacy and Workplace Interests
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