Employee privacy trumps business interests

Arbitrator orders employer to stop asking for detailed medical information for short-term disability benefits

In a faceoff between an employer’s business interests and employee privacy, the British Columbia Arbitration Board has limited a B.C. company’s requirements for medical information while a privacy complaint is decided.

Accenture Business Services, a consulting and outsourcing company, had a sick leave policy where it required a medical certificate for absences of more than five working days. More than four of these absences in one year sometimes resulted in a request for a medical exam.

Usually, Accenture would ask for a medical certificate or examination on a case-by-case basis. However, on March 20, 2006, it developed a short-term disability plan with its benefits administrator that included a form asking for information such as primary and secondary diagnoses, symptoms, all test results and consultation reports, medications taken, history of similar conditions, pregnancy, current treatment and specialist reports.

The union grieved the plan and the settlement resulted in a new claim process with a form that only required general information related to the employee’s ability to work and whether accommodation was needed. The new process also stipulated Accenture could request “further specific information to substantiate an employee’s absence due to illness/injury” on a case-by-case basis. Accenture agreed this type of request would be used in limited circumstances.

Accenture followed the new process for about a year but eventually began asking for all information about employees’ illnesses regardless of the circumstances. The company introduced a new form that was similar to the one used before the settlement. Claiming more than 60 per cent of short-term disability applicants were being asked for extra information, the union filed another grievance. It said Accenture was violating the process by demanding employees “compromise their right of privacy through unwarranted disclosure of personal medical information.”

The union also requested interim orders requiring the company to stop requesting information beyond that on the general information form unless the union approved it, not require any medical information for absences of less than five business days and for no sick leave to be denied until a final ruling was made on the privacy grievance. Accenture argued these requests were more restrictive than the previous settlement and it should be allowed to continue the regular practice at least until a final ruling was made. Because only the benefits provider received the information, it said, there was “minimal” infringement of privacy. The benefits provider maintained strict confidentiality and didn’t share information with Accenture other than the basic information in a claims advice form.

Accenture also said if the union’s request for the interim orders was granted and the company won the case, it wouldn’t be able to recoup the loss from false claims it couldn’t substantiate if the orders were made. Because the union’s demands were so strict, it would in fact restrict the agreement they had reached in the previous settlement.

The board found the sensitivity of the employees’ privacy interests warranted interim relief. If Accenture was allowed to continue to request all information, it said, there would be no way to undo it if in the end it was decided the employer was asking for too much.

It also found Accenture wasn’t limiting its requests for additional medical information to limited circumstances, since it was doing so in 60 per cent of applications. This had the effect of “essentially requiring independent medical examinations” of that 60 per cent, which “it is well established that given the sensitive nature of medical information, additional medical examinations by an independent party may only be required in exceptional circumstances.”

In addition, the board said, if Accenture was prevented from requesting additional information on the new form by an interim order, it would still be able to ask for the basic information on the previous form from the settlement.

Given it found the interim orders for Accenture to stop requesting more detailed medical information wouldn’t hurt the company but without them employees’ privacy could be harmed, the board granted the union’s request for the interim orders.

The interim relief sought is the protection of employee privacy, entitlement to sick leave, the prevention of unreasonable demands for medical information and unreasonable denials of sick leave during the time period in which the parties must wait for the matter to be arbitrated,” the board said. “

Canadian Employment Law Today will follow this case as it moves towards a final decision.

For more information see:

Accenture Business Services for Utilities v. C.O.P.E., Local 378, 2008 CarswellBC 1640 (B.C. Arb. Bd.).

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