School Board Update
Did You Ask to Share That? Arbitrator Comments on School Board’s Ability to Share Medical Information with Third Party
Date: April 11, 2023
In Toronto Catholic District School Board v Canadian Union of Public Employees, Local 1328, Arbitrator Goodfellow recently issued a local arbitration decision concerning the administration of the Board’s sick leave and short-term disability plans.
The hearing related to multiple grievances all touching on similar issues. Arbitrator Goodfellow specifically answered two questions:
(i) Could the Board require all employees to submit proof of illness after five days of absence using only the medical confirmation form attached as Appendix C to the collective agreement?
(ii) Could the Board share employee personal health information with a third-party attendance support services company absent a written consent authorizing release of information to that contractor?
Arbitrator Goodfellow answered the first question in the affirmative and the second question in the negative.
Question 1: Proof of Illness
The central terms in the collective agreement address the medical confirmation of illness or injury the Board may require. The article on “Proof of Illness” said, in part:
A Board may request medical confirmation of illness or injury and any restrictions or limitations any Employee may have, confirming the dates of absence and the reason thereof (omitting a diagnosis). Medical confirmation is to be provided by the Employee for absences of five (5) consecutive working days or longer. The medical confirmation may be required to be provided on the form contained in Appendix C.
Appendix C is a medical confirmation form.
It was the Board’s practice to require an employee to provide a completed medical confirmation form each time an employee commenced a medical leave of five consecutive days or more. If an employee submitted documentation other than the medical confirmation form, such as a doctor’s note, they were advised the notes were not accepted and a medical confirmation form was required. The only exception to this was where an employee had claimed WSIB benefits.
The Union’s position was that the Board could not require Appendix C to be completed in all cases after five consecutive days of illness on the basis that the collective agreement stated medical confirmation may be required on a form prescribed by the Board. It was the Union’s view that discretion must be exercised on a case-by-case basis.
After reviewing the collective agreement language within the context of the sick leave regime and the context of collective bargaining, Arbitrator Goodfellow found the Board could require all employees to submit proof of illness after five consecutive working days of absence using only Appendix C.
Arbitrator Goodfellow stated that the use of “may” in the central terms was meant to preserve the ability of school boards to decide what to require. In essence, the Board could require Appendix C or something else.
The Arbitrator also noted that requiring Appendix C in all cases provides certainty, simplicity and ease of administration and helps avoid allegations of discrimination.
Question 2: Share Personal Health Information with Third Party
In this case, the Board had retained a third-party consultant (the Third Party) to provide various services including developing and implementing an attendance support program and providing advice and guidance on individual employee absences.
In their role, the Third Party had access to medical information submitted by employees to the Board relating to their entitlement to sick leave, short-term disability leave and disability accommodation and they participated in meetings directly with employees along with Board staff. The Board did not obtain explicit written consent from employees to disclose their personal information to the Third Party.
The Union acknowledged that there were circumstances in which it was necessary for the Board to share personal health information with the Third Party in order to enable the Third Party to assist the Board in the performance of its sick leave, short-term disability, attendance management and return to work functions. However, the Union submitted the Board could do so only if the employee expressly consented to that disclosure. The Board could not rely on the consent for disclosure to the Board set out in Appendix C to enable disclosure to a third party. Separate consent is required.
The Board submitted that the collective agreement does not prohibit disclosure of employee medical information to a third party retained to assist it with its sick leave and short-term disability benefits administration, attendance management and return to work functions and the use of third parties is recognized as a management right.
The Board relied on the consent included in Appendix C which authorized disclosure to the “employer.” The Board also relied on exemption under the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990 (MFIPPA) which stated an institution shall not disclose personal information in its custody or under its control except for the purpose for which it was obtained or compiled or for a consistent purpose.
The parties were in agreement that the Board was not a health information custodian under the Personal Health Information Protection Act, 2004 (PHIPA). However, the Union still argued that PHIPA was relevant because PHIPA provides the basis on which the Board acquires the information and contemplates end-to-end protection of such information.
The Arbitrator accepted the Union’s argument, finding that the existing consent authorized disclosure to the Board and use by the Board. The consent did not address disclosure by the Board or use by the Third Party, even if it was for the same use. The consent neither identified nor sanctioned any such disclosure. The Third Party was not the “employer.” The Third Party had no relationship with the Board’s employees and was the proverbial “stranger” to the employment relationship.
The Arbitrator also rejected the Board’s arguments regarding permissible disclosure under MFIPPA, stating that, even if the provisions applied, the application of those provisions did not address whether the Board was entitled to make disclosure under the collective agreement. In essence, regardless of the statute, the Board must still exercise its management rights in a manner that recognizes the highly confidential nature of the information and the fundamental requirement of consent for disclosure that underpins privacy law.
Arbitrator Goodfellow stated the following with respect to privacy rights:
To allow such disclosure without employee knowledge and consent flies in the face of the important privacy protections that permeate the law in this area, including in the extensive case law referred to by the Union that seeks to carefully balance employee privacy rights with an employer’s ability to administer its collective agreement and statutory obligations.
The Arbitrator found it was a breach of management rights and not permitted. The grievance was upheld in part.
This decision serves as a good reminder to ensure practices with respect to obtaining and sharing health information are consistent with the collective agreement and any privacy obligations.
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