February 3, 2021
A recent decision provides a caution concerning the proper treatment of medical information in the grievance process. In Orillia Soldiers’ Memorial Hospital v Ontario Public Service Employees’ Union, Local 383, Arbitrator Randi Abramsky determined that the hospital violated the Personal Health Information Protection Act (“PHIPA”), the Occupational Health and Safety Act (“OHSA”) the hospital’s own policy and the collective agreement when it disclosed the grievor’s occupational health records to outside counsel without obtaining the grievor’s consent or the order of an arbitrator.
The grievor had previously filed grievances concerning the duty to accommodate. In preparation for the hearing, the hospital’s human resources department directed the occupational health department to release the grievor’s occupational health file to outside legal counsel. The file contained personal health information including immunization records, medical notes and discussions back to the start of the grievor’s employment in 1994.
Section 62 of the OHSA prohibits the employer from gaining access to a health record concerning a worker without the worker’s written consent except by an order of a court or tribunal or in order to comply with another statue. There was no attempt to obtain the grievor’s consent to release this information or request an order of an arbitrator. The union filed a grievance concerning the privacy breach. The hospital took the position that it could release the information because the file was primarily an employment related file which brought it within the exceptions under PHIPA. The hospital further argued that it could release the information because it was a party or a witness to the litigation concerning the accommodation.
Arbitrator Abramsky determined that the employer could not rely on the exceptions under subsection 4 of PHIPA to argue that the occupational health record is maintained for “primarily an employment-related purpose”. Arbitrator Abramsky reviewed the role of occupational health in the accommodation process and determined that the role is to ensure the individual can do the essential tasks of the job while maintaining physical and mental health; a combined employment and health related role.
Arbitrator Abramsky determined that OHSA “without question” prohibits an employer from obtaining or gaining access to a health record from a third party, without the employee’s written consent, but it is not limited to third parties. The Arbitrator determined that the provision should read broadly to include internal access. Section 62 (2) of OSHA precludes the employer, including its agents such as counsel, from gaining access to those health records, without consent or an order.
Ultimately, Arbitrator Abramsky noted the irony of the case was that the relevant portions of the occupational health file would have been disclosed to employer counsel by consent or by order. Employers are not permitted to unilaterally speed up this process.
This case highlights the presumptive confidentiality of personal health information. Simply filing a grievance does not allow an open book review of a grievor’s medical history. Both the employer and the union must ensure they are complying with privacy statutes and the collective agreement when handling this information.