Employers are entitled to require employees to visit in-house occupational health department physicians to obtain reasonably necessary medical information, if that right is provided for in the collective agreement. This was recently confirmed in Rio Tinto Alcan Inc. v UNIFOR, Local 2301 (Medical Information Grievance) (PDF) when Arbitrator Michael Fleming found that the employer had not violated employee privacy rights when it required employees to visit in-house occupational health department physicians to confirm eligibility for wage loss protection benefits.
Rio Tinto Alcan Inc. ("RTA") operates a safety sensitive, aluminum smelter in Kitimat, B.C. Article 37 of its Collective Agreement with UNIFOR, Local 2301 (the "Union") provides the Kitimat Works Disability Indemnity Plan ("DIP") reflects the parties' agreement that RTA will provide wage loss protection to eligible employees who are absent from work due to non-work related illness or injury.
RTA provides medical and health services to its employees through its Occupational Health Department (the "OHD"). Eligibility for DIP benefits requires that an employee visit a physician within five days of the start of a disability and return a completed Physician's Report to the OHD, which makes the final determination on whether the employee is disabled from performing their regular job duties.
The Union filed a policy grievance and three individual grievances alleging that RTA had breached Article 37.10 of the Collective Agreement by requiring employees in receipt of DIP benefits to undergo a consultation and examination by an RTA physician.
Article 37.10(a) provides:
(a) The Company reserves the right to have the employee examined by a physician of its choice. The decision of the Company's Occupational Health Department (in consultation with your attending physician) regarding whether an employee is disabled is final.
The Union argued that RTA's actions constitute arbitrary intrusions on employees' privacy. In this case, it submitted that RTA unreasonably asked employees to see an OHD physician, and then used that opportunity to examine the employee's medical file.
The arbitrator ruled in favour of RTA. He found that the practices and policies relating to the operation of the OHD and its functioning do not result in an unreasonable intrusion on employee privacy rights. An employer has a right to ensure that employees are only absent from work for legitimate reasons and is entitled to sufficient information reasonably necessary to facilitate the early, safe return to work of injured or ill employees. The employee has an obligation to provide such information.
The arbitrator explained that the parties had negotiated a comprehensive scheme in the Collective Agreement to ensure a continuity of earnings for employees who are unable to work due to non-work related illness or injury, and the eligibility requirements.
The arbitrator was satisfied that the vast majority of DIP claims are accepted by the OHD based on the information contained in the Physician's Report. Accordingly, OHD physicians only see a small number of ill or injured employees. The decision by the OHD to schedule an appointment is often the result of a treating physician couching a medical restriction in terms of an accommodation, which requires clarification. On rare occasions an RTA manager may refer an employee to the OHD in the context of a workplace injury or where potential accommodation issues are identified. The arbitrator found that OHD follow-up in these circumstances is not an unreasonable intrusion on privacy rights.
Article 37.10 (a) gives the Employer the right to refer an employee to a physician of its choosing and there was no dispute that generally means the OHD physician, which has been the accepted practice for more than 30 years. However, where there are reasonable grounds for the OHD physician to believe that more information or a specialist opinion would be helpful they can expedite referrals to medical specialists. The arbitrator found that these referrals would not constitute an unreasonable intrusion into employee privacy rights.
This decision recognizes that an employer will not intrude on employee privacy rights by requiring that they be examined by a physician of its choice, where that right was negotiated in the collective agreement. It also recognizes an employer's right to seek reasonably necessary medical information to ensure that employees are only absent from work for legitimate reasons, and to facilitate their return to work. In-house occupational health departments can be a valuable tool employers can use to learn important medical information about its employees without infringing upon privacy rights.