Pre-employment medical examinations – Discrimination, breach of privacy and burden of proof

Information collected in exams were relevant to the job; no distinctions were made under protected grounds: Arbitrator
By François Côté and Jocelyn Rancourt
|employmentlawtoday.com|Last Updated: 08/06/2013

In Syndicat des travailleurs et travailleuses de Loto-Québec (CSN) et Loto Québec, the arbitrator rejected a grievance filed by the union challenging the legality of a pre-employment medical examination. According to the arbitrator, the union not only had used the wrong forum, but also had not proven that the medical examination had gone beyond checking fitness for work.

The union, Syndicat des travailleurs et travailleuses de Loto-Québec, filed a grievance alleging that the medical examination imposed by Loto-Québec on applicants for the position of administrative technician (AT) was abusive and contrary to the Quebec Charter of human rights and freedoms.

The evidence showed the job in question was a clerical position that involved placing orders and making sure lottery tickets were distributed efficiently. However, the AT could also be called upon to replace the warehouse operator, a position requiring the handling of heavy loads.

Because of the more physical tasks the AT could be asked to perform, Loto-Québec required the applicants to undergo a pre-employment medical examination. When they arrived at the medical clinic that Loto-Québec entrusted with administering the examination, the applicants had to fill out a comprehensive questionnaire on their medical history and alcohol and drug consumption, undergo a sight test and a back X-ray and provide a urine sample. After completing these steps, they would meet with a physician, who would ask them questions based on the test results. During the hearing, it was also shown Loto-Québec never had the medical records in its hands -- it only received a certificate of fitness completed by the physician.

The union asked the arbitrator to recognize the abusive nature of the medical examination, deliver the medical reports to the workers involved and make sure that no copies of such reports were retained.

Questions

Is a medical examination a necessary requirement for a job? The collective agreement binding the parties stated that the onus was on the employer to demonstrate that the requirements for a position are neither abusive nor discriminatory. The union invoked this provision, claiming Loto-Québec had to demonstrate the medical examination was neither abusive nor discriminatory. The arbitrator rejected this argument on the grounds that the medical examination was “a way of checking that applicants meet one of the job requirements” and i\was not itself a requirement.

Was the required medical examination abusive? The union had already admitted Loto-Québec had the right to require a medical examination. The real question, therefore, was whether the medical examination was abusive and contrary to the charter.

The arbitrator pointed out right away that the pre-employment medical examination must be used to establish the employee's fitness for the position she holds or aspires to hold. The evidence showed that although the questionnaire was broad, the questions asked by the examining physician were related to the job requirement. Also, Loto-Québec received minimal information as it had access not to medical information but to a certificate of fitness. The arbitrator found the union had failed to prove the medical questionnaire or the urine and visual acuity tests were imposed at the employer's request. Lastly, the means established for the medical examinations were determined solely by the clinic.

For these reasons, the arbitrator found the grievance was not the proper avenue of redress and did not target the right person. [Translation] “The employer cannot be criticized for collecting information when it was not the party collecting the information, did not request such collection of information and is not the holder of the collected information,” said the arbitrator.

Despite everything, the arbitrator continued her analysis as Loto-Québec was the party collecting the medical information. She found one could not speak of discrimination as the employees were not the subject of a distinction, preference or exclusion impairing their right to equality guaranteed by section 10 of the charter. There may be a breach of privacy, in which case, the onus was on the union to demonstrate that the breach was unwarranted. Accordingly, even if the party collecting information had been Loto-Québec and not the clinic, it would not have been sufficient for the union to establish that information was collected -- it had to demonstrate, through a medical expert or a healthcare professional, that the information was not necessary. Absent such proof, the arbitrator cannot determine whether the examinations in dispute are necessary or unnecessary to fulfill the requirements of the job.

This decision is interesting because the arbitration board distinguished between the rights and obligations of the employer and those of its agent -- the medical clinic entrusted with checking physical fitness for staffing purposes. It also affirmed that it is not up to the employer to justify the content of such a check. Instead, it is up to the union claiming a breach of privacy to demonstrate, through professional healthcare experts, that the tests required do not have a useful link to the job requirements.

For more information see:

· Syndicat des travailleurs et travailleuses de Loto-Québec (CSN) et Loto Québec (April 26, 2013), AZ-50963201, Arbitrator Nathalie Faucher.

François Côté is a partner with Norton Rose Fulbright in Montreal. He can be reached at (514) 847-4464 or francois.cote@nortonrosefulbright.com. Jocelyn F. Rancourt is a senior partner with Norton Rose Fulbright in Quebec City. He can be reached at (418) 640-5003 or jocelyn.rancourt@nortonrosefulbright.com.

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