Arbitrator Ends Employer Overreach in a Unionized Environment

Written on behalf of Peter McSherry

When a person is employed pursuant to a collective agreement, they have the benefit of being a member of a union. As such, whenever an employment-related issue arises, whether it affects only one employee or it affects all of the employees, the union will take up the cause on behalf of those affected and will attempt to resolve matters with the employer. Generally, this is done through a grievance process, whereby the union files a grievance alleging that the employer has violated the collective agreement or otherwise violated employee rights in some way. The union and employer then both appear before an arbitrator, who determines the outcome of the grievance and directs the parties on how they should proceed.

Grievances may arise in various contexts and may range from grieving that an individual employee was inappropriately denied overtime pay for one shift to grieving that an employer’s stated policy violates the rights of every single union member. This blog post will explore a recent case where an employer was alleged to have violated the rights of all of the union members when it implemented a policy allowing disclosure of personal health information of individual union members to various members of management.

Are Employers Entitled to Receive Health Information About Their Employees?

In the recent decision Canadian Pacific Railway Company v Teamsters Canada Rail Conference, Ontario’s Superior Court of Justice heard a matter that arose out of an employer’s alleged violation of employee privacy. More specifically, the employer, Canadian Pacific Railways, had amended its policy with respect to disclosure of employee health and medical information. Typically, such information is considered private and personal to each employee, which means that an employer does not have any right to know anything about your medical history unless you choose to tell them.

Occasions may arise where a medical condition influences employment. In other words, a person may be hindered by a medical condition that prevents them from carrying out the duties of their employment. In such instances, an employee is only required to disclose to an employer that they require accommodation in order to carry out their duties. For example, if someone who is required to work on their feet all day undergoes surgery on their leg such that they are unable to walk for a period of time, that employee would advise their employee that they require an accommodation such that they are able to carry out the duties of their job without being on their feet, or that they work in some other, seated, capacity for the duration of their healing. In such a scenario, the employer is not entitled to know the underlying cause of the injury. Rather, the employer is only required to know that the employee requires a workplace accommodation.

Employer Implements a New Health Information Disclosure Policy

In Canadian Pacific Railway Company v Teamsters Canada Rail Conference, the employer had a form called a Functional Abilities Form for Safety Critical Positions (“FAF”). The FAF detailed any limitations an employee may have and was required by the employer to be signed by all employees. The FAF was generally used by managers seeking to accommodate employees who had suffered an injury or who were otherwise limited in some way from carrying out the normal duties of their employment. As such, the FAF contained detailed information about any such employee’s functional limitations, and was only disclosed to direct supervisors who would be involved in planning an injured employee’s return to work. One day, Canadian Pacific implemented a new “Policy 1804”, which purported to expand the scope of people to whom an employee’s personal medical information, including any associated limitations, could be disclosed. In particular, the policy authorized the disclosure of employee medical and occupational health information, without the employee’s consent, to a variety of managers and supervisors.

Union Grieves the New Policy

The union grieved the implementation of Policy 1804, asserting that it and the revised FAF were “unnecessary, overly intrusive and in breach of its members’ privacy rights.” The arbitrator agreed and in the Initial Award he concluded that “except as required by law, supervisors and managers are only entitled to information about functional limitations.” Despite this finding, Canadian Pacific maintained policy 1804 after the arbitrator’s ruling and continued to have the FAF refer to that policy. The union then requested that the arbitrator revisit his initial decision and direct Canadian Pacific to eliminate any references to policy 1804 in the FAF consent documents. The arbitrator issued that order and also ordered that “to the extent that Policy 1804 continued to allow the disclosure of medical information beyond functional abilities for accommodations (or for use in an accommodation grievance or as required by law), it was of no force and effect” which effectively nullified policy 1804.

Canadian Pacific was unhappy with this turn of events and brought the application for judicial review before the Court. In its application, Canadian Pacific asserted that the arbitrator had overstepped his bounds when he decided that policy 1804 was void and of no force or effect. It further asserted that the arbitrator’s decision was unreasonable and did not comport with other arbitrator’s decisions about the release of employee health information.

Court Dismisses the Employer’s Concerns

The Court quickly determined that each ground of review would fail. Regarding the employer’s argument that the arbitrator had overstepped his authority, the Court was satisfied that arbitrator was well within his authority to decide, as he had, that in enacting policy 1804 and the FAF consent form, Canadian Pacific was essentially trying “to get around the limited disclosure of employee health records and information that the law allows and considers reasonable.” Employee health and medical information is only to be disclosed in the workplace for the limited purpose of accommodating any health limitations encountered by the employee. Even then, the only information required to be disclosed by an employee is that which will further the accommodation process. Such information must only be disclosed to those personnel of the employer who are directly involved in designing an appropriate accommodation for the employee in question. Policy 1804 clearly exceeded the bounds already prescribed by law as it allowed disclosure of personal medical information to supervisors, managers and labour relations personnel for a wide variety of purposes well beyond simple accommodation.

Moreover, the arbitrator’s original decision was found to have been reasonable, as the arbitrator had applied the correct legal tests and had undertaken the proper legal analysis in arriving at his conclusion that Canadian Pacific, in designing policy 1804, had engaged in overreach. Despite Canadian Pacific’s arguments to the contrary, the arbitrator’s ruling had been in-line with arbitral precedent, and none of the cases upon which the employer relied had dealt with similar circumstances. As such, the arbitrator had consulted and correctly applied the proper arbitrator authorities in drawing his conclusions.

The arbitrator’s original ruling stood, and thus Canadian Pacific would have to immediately accord to that ruling by withdrawing policy 1804 and any references thereto in the FAF.

Contact Employment Lawyer Peter A. McSherry for Assistance With the Union Grievance Process

If you are a member of a union and are uncertain of your rights, contact Guelph employment lawyer Peter A. McSherry for advice on your options in the event of a workplace dispute or union grievance. We have the skills and experience required to assist unionized employees and ensure that your rights are preserved during each step of the dispute resolution process. We will expertly guide you through the daunting process of ascertaining and asserting your rights as a member of a collective bargaining unit. Contact our office online or by telephone at 519-821-5465 to arrange a confidential consultation with a member of our team.