Arbitrator finds Hospital Violated the Privacy Rights of Nurses applying for Sick Benefits

By Sharan Basran

In a recent decision, an Arbitrator ordered a Hospital to stop requiring nurses to complete a form requesting excessive confidential medical information to qualify for sick leave benefits. Hamilton Health Sciences Centre and Ontario Nurses’ Association (October 5, 2007, G. Surdykowski) considers the fundamental privacy rights of employees in the context of the administration of sick benefits, and the limitations on what confidential medical information Employers may request from employees to justify receipt of sick benefits.

This case concerns the confidential medical information that the Hamilton Health Sciences Centre (“the Hospital”) required nurses to provide in an initial application for sick benefits. The Hospital decided to outsource the administration of the sick leave plan to a private sector company. The Company required every nurses who applied for sick benefits to submit a “Medical Certificate of Disability”. The Company stated that the provision of the consent and medical information on the form were mandatory. If a nurse did not complete the form, nurses were advised they would not be entitled to sick benefits.

The Ontario Nurses’ Association challenged two aspects of the form: a consent signed by the nurse authorizing individuals to release medical information to the Company, and the medical information required on the form:

• The Medical Certificate required a nurse to sign a blanket consent that had few limitations, both in terms of the persons to whom the consent related, and the extent of information that could be released. The form requested a nurse to sign a consent that allowed any party involved with the treatment of the nurse, including a health care professional, WSIB, or an Automobile Insurer to disclose information to the Company. The consent did not restrict what medical information could be disclosed, so long as it related to the claim for sick benefits.
• The form also required the nurses’ physician to provide extensive and detailed medical information on a whole host of issues, including diagnoses, symptoms, medical history, findings of medical investigations, treatment and prognosis.

The Arbitrator commenced his decision by situating the dispute within the legal context of privacy rights. He recognized 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”. The Arbitrator ultimately found that the Hospital violated the privacy rights of nurses and the Collective Agreement by requiring medical information far in excess of what was necessary for a routine application of sick benefits.

In arriving to this conclusion, Arbitrator Surdykowski confirmed general principles of arbitral law respecting sick leave:

• Employers are only entitled to limited information in the initial application for sick leave benefits in the absence of a Collective Agreement provision providing otherwise. Practically, this would mean an employee is only required to provide medical certification of illness or a medical certificate verifying that the employee is unable to work because of illness.
• Employers are generally not entitled to other more detailed information such as diagnosis, a description of symptoms, medical history, treatment plan, unless the Collective Agreement specifically requires employees to disclose such information, or the employer has reasonable grounds to question the accuracy of information provided by an employee in an individual case.

In applying these principles to the situation faced by nurses at Hamilton Health Centre, the Arbitrator reviewed the Collective Agreement, and held that the Hospital was not entitled to more than a basic medical certificate verifying an employee’s absence due to illness. The Hospital was not entitled to require highly detailed, invasive, and confidential medical information on its application form for sick benefits, such as the employee’s medical condition, history, treatment. The Hospital could only obtain such extensive medical information if it had a demonstrable basis to doubt the accuracy of the medical certificate provided.

The Arbitrator also found that the blanket consent that nurses were required to sign was too far reaching and also violated the Collective Agreement. The case set out guidelines for the provision of consent:

• The Arbitrator found that the unrestricted access on the certificate to all information concerning any medical condition relative to the claim, went beyond the permissible bounds of disclosure. He found that generally any consent requested by an Employer must be limited to that medical information an employee would otherwise be entitled to or required by law for a sick claim, and to the purpose for which it is sought (for a particular claim of sick benefits). In other words, the consent cannot be used as a means to obtaining indirectly what could not be obtained directly from the medical certificate.
• The Arbitrator found that the “basket” consent on the form, that did not identify the specific health care professional, and allowed the Hospital to receive medical information from anyone involved in treatment was not appropriate. The consent ought to be limited to the treating physician and a separate consent ought to be required for each physician.
• The Arbitrator found that the potential for unrestricted and direct contact between the Hospital and her/his treating physicians without the knowledge of the employee, as provided for in Medical Certificate, was improper. He held that in general every contact between an administrator and a physician, should be through 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 form or the specific information required, as appropriate

At a time, when Canadians are faced with an increasingly aging workforce amongst health care professionals, who are more susceptible to becoming ill, this case is of significant importance to ensuring that the privacy rights of employees are not disregarded through invasive access to confidential medical information. Employers must be conscientious in administering sick benefit plans in a manner that restricts its access to limited medical information necessary to establish a claim for sick benefits. In the normal course, this means that Employers are only entitled to basic medical information establishing impairment and not the particulars of the medical condition. This case sends the message that Employers seeking other extraneous or intrusive medical information that interferes with the privacy rights of employees will not be tolerated.

Kate Hughes represented the Ontario Nurses Association.