Sick of management rights talk

The City of Greater Sudbury recently tried to extract a huge amount of health information from CUPE members claiming short-term sick leave (for a cold, for instance) relying on “management rights” to get this information. A recent decision by Arbitrator William Kaplan (Greater Sudbury (City) and CUPE Local 148, 102 CLAS 309) refused the Employer’s claim that this was a legitimate use of management rights and upheld the Union grievance.

On October 30, 2006, CUPE 148 (representing workers at Sudbury’s long-term care facility Pioneer Manor) was informed that facility management was implementing a new Sick Leave/Disability program as of 1 January 2007. The Union filed a grievance in December. The matter was finally heard at arbitration in July 2010 and a decision released in August.
The new system required employees on short-term sick leave to fill out an Attending Physician’s Statement in order to claim benefits. This form included an authorization for the Employer to get a complete copy of the employee’s entire medical file. The form also included far more information than necessary for the Employer to administer a short-term sick leave program. For instance, the form required the physician to indicate the pregnancy status of the employee, a DSM diagnosis (in other words a psychological assessment), any cardiac issues, an assessment of the employee’s mental competence, etc.

One consequence of the use of this form (besides the obvious intrusion in an employee’s privacy rights) was the increased cost to the employee. Because of the extensive information required by this form physicians were charging up to $104 for completing it. Under the collective agreement, employees bore the costs of the medical note. However, normal physician notes for a short-term illness are relatively cheap and fast. The Union asked the Employer to pay the cost of the physician notes in addition to asking that the new form be discontinued.

The Employer relied on the fact that this form was in use in every other bargaining unit in the City. The Employer felt that it was entitled to this information in order to administer its program
Arbitrator Kaplan completely disagreed. He relied on the dominant trend in arbitral jurisprudence that accords protection to employee privacy unless the Collective Agreement or legislation stipulates otherwise. As Kaplan observes, “short-term absences attract limited disclosure. Experience indicates that these short-term illnesses are often seasonal and usually resolve themselves. They do not normally involve the management of a disability with attendant accommodation obligations where considerable information will often need to be shared.”
The extensive information requested by the Employer on the APS (all medical files, complete history, diagnosis, etc.) rendered the entire form unusable. He directed the Employer to cease using the APS. He also reaffirmed the obligation of employees to pay for the sick note, noting that without the APS the cost was likely to return to the historical norm.

This case points out some of the limits of management rights. Management rights cannot, even in the absence of a collective agreement provision, override basic human rights to privacy and confidentiality.

What do you think?

Should an employer have the right to know pregnancy status? DSM diagnosis? complete medical records? STD status?

Does the amount of information an employer needs relate to the extent of accommodation required?

What about all the other employees in the City. They have, apparently, agreed to this form. Does this ruling help them at all?