Privacy and Medical Information in the Workplace.

AuthorEl Fakhry Tuttle, Myrna
PositionFeature: Privacy Protection

Requesting medical information from employees may raise privacy issues. Employees have the right to keep their medical information confidential and private. But employers also have the right to know about their employees' illness or disability, and have the right to seek medical information in order to provide appropriate accommodation. So, how can we balance the two?

In Alberta, the Freedom of Information and Protection of Privacy Act (FOIP) section 17 provides that the disclosure of some personal information, including medical information, is presumed to be an unreasonable invasion of privacy. Without consent, such information would only be released in exceptional circumstances.

Section 3 of the Personal information Protection Act (PIPA) covers the collection, use, and disclosure of personal information. PIPA balances an individual's right to have his or her personal information protected, and an organization's need to collect, use or disclose personal information for purposes that are reasonable. Under PIPA, while you may need to collect, use and disclose certain personal information, you must, according to privacy legislation, explain the reason for collecting the information and how it may be used or disclosed (see: A Guide for Businesses and Organizations on the Personal Information Protection Act).

The Health Information Act also governs the disclosure of health information in Part 5.

An employee's personal medical information is generally acknowledged to be private and confidential. However, it is well established (and should be obvious) that an employer is entitled to access sufficient information for legitimate purposes. This includes assurance that the employee is able to continue or return to work, or to provide necessary appropriate accommodation to ensure that the employee can work without jeopardizing his or her safety, or that of other employees. An employer is entitled only to the least such information necessary for the purpose and an employee should generally not be required to disclose their medical files, or even diagnosis or treatment. However, exactly what is required will depend on the circumstances and purpose--and may very well include diagnosis, or treatment, or other information (Complex Services Inc v Ontario Public Service Employees Union, Local 278. 2012 CanLII8645 (ON LA) at para 84).

Employers may seek medical information in a variety of circumstances, including to support:

* a request for short-term sick...

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