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Your Right to Medical Privacy

Wednesday, October 4, 2017
To: All MoveUP Members at FortisBC Inc., FortisBC Energy Inc. & FortisBC-CSC

In the Employer – Employee relationship, one of the utmost important issues between the two, is the legal responsibility related to medical privacy.   We often see this issue arise when dealing with a member’s entitlement to sick leave and/or in the accommodation process.   Privacy laws such as the Personal Information Protection Act, S.B.C. 2003, c. 63 [PIPA] protect a person’s health information.  PIPA governs the collection, use, and disclosure of Personal Information which is broadly defined as information about an identifiable individual in the private sector in BC.  This collection of information is governed by the reasonableness standard, and is obtained through consent of an individual.  This is why you will see on the Short Term Disability form issued by Desjardins, “a consent box” for you, the member, to sign which then provides the release of medical information from you to Desjardins. 

It is also important to know, that you are not legally required to sign the consent form, or the authorization form that will accompany the form sets, however, you are required to comply with the requests for medical information being sought to substantiate your eligibility for short term disability. A member risks the likelihood of not having their claim for short term disability approved if they do not fill in the necessary sections of the form set to be returned to Desjardins.  Ensure that your physician fills in the applicable sections as they pertain to your current absence.  

Medical Privacy and What Does It Mean To You?

Member’s medical information is given a high level of protection by the courts and human rights legislation and with this understanding, it is recognized that Employers have a legitimate right to request medical information from members in appropriate situations; however, it is fettered by the test of what is reasonably necessary.  A vast number of arbitrators have decided this factor which has provided for a significant body of arbitral jurisprudence that provides for the right of Employers to have access to information but it must be balanced with the member’s right to privacy.  In essence, we see this to mean:

  1. “reasonably necessary” for the administration of sick leave benefits; and
  2. “consistent” with the collective agreement.

The law is very clear, in that questions around diagnosis, nature of treatment plan, medications and doses are not reasonably necessary to determine if a member is eligible for receiving short term disability.  It is the understanding that the longer the absence, the more information the Employer may be entitled to or reasonably necessary to determine the status of the claim if the absence may be extended.  Each case must be considered on its own merit, as each case comes with its own facts and circumstances that must be considered. 

In terms of being consistent with the collective agreement, this means that the Employer’s entitlement to collect medical information arises from its right to administer sick leave provisions of the collective agreement.  However, while it is accepted that Employers have certain legitimate rights in terms of the disclosure of medical information, it is also accepted that members do not by virtue of their status as employees lose their right to privacy or integrity. You have a right to know why more medical information is being sought and having your medical practitioner involved in the process, as it will continue to be a struggle when attempting to protect your right to privacy in what is often sensitive and personal medical information. 

We have seen an increase in short term disability claims being denied by the Company’s administrator, Desjardins Financial, resulting in grievances being filed on behalf of our members.  The pattern that we are seeing with these claims being denied is on the basis that Desjardins states that there is, “insufficient medical information to conclude that you have a disabling medical condition” or “that the information on file is insufficient to support an absence from the workplace”. Unfortunately, this creates undue hardship to our members who are left without the financial stability that we argue is made available to them by the negotiated language. 

It is the Union’s assertion, which we argue is supported by the arbitral jurisprudence, that to ensure that a member’s fundamental right to privacy is properly respected and upheld, Desjardins is required to properly state the grounds of its dissatisfaction with the medical information that has already been provided by a member’s qualified medical practitioner(s), so that a member and their physician will have the opportunity to address those concerns.  It is our position that this is not occurring. 

Instead we see Desjardins seeking to have access to a variety of information before seeking clarification from the member’s qualified medical practitioners when assessing the claim for benefits.  Such information being sought is as follows:

  • all clinical notes
  • all consultation and progress reports from your specialist
  • all test results

We will continue to argue that our member’s rights to medical privacy must be respected and that the Company, as represented by Desjardins Financial, must ensure that they are seeking clarification from your qualified medical practitioners if they have a concern or need to seek clarification with the medical already provided.  Asking for access to your medical information as noted above is a fishing expedition which we say they are not entitled to without providing rationale as to why it is reasonably necessary to substantiate their adjudication process.  We impress upon you to understand your rights and if you have any questions please contact a job steward or the union office.

 

In Solidarity,

Cindy A. Lee
Union Representative

Reply-to email: 
ksmith@moveuptogether.ca
ks/usw2009
17-FBC, FBCE & FBC-CSC-Article 10
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