Canadian Labour Reporter

August 9, 2021

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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the benefits provider. The benefits booklet given to employees stated that a failure to meet the requirements of the STD program might result in the denial or termination of benefits, with one of the requirements be- ing the provision of supporting medical information that was sat- isfactory to the benefits provider. The booklet also indicated that employees had to be under the care of an appropriate medical practitioner as approved by the benefits provider. Non-medical information, prognosis, and re- turn-to-work information would be shared with EPCOR, but not any medical information from the forms. Some employees expressed concern about the extent of medi- cal information they and their doctors were required to provide in order to access STD benefits — the doctor's form asked for a primary diagnosis, a secondary diagnosis, specific information if it was a mental health issue, test results, current medications, and recommended work limitations, regardless if accommodation was requested. The union filed a grievance claiming that the forms were co- ercive and intrusive. It argued that medical information should go through the employee and the STD process attempted to insert the benefits provider into the medical assessment process "which is the domain of the treat- ing physician." The arbitration board noted that the evidence showed that both EPCOR and the benefits provider had appropriate mea- sures in place to protect the con- fidentiality of employees' medical information. However, it didn't matter if too much information was being sought, the board add- ed. The board also pointed out that Alberta's Personal Information Protection Act (PIPA) requires consent to the collection, use, or disclosure of personal informa- tion. The benefits provider had a standard practice of requiring employees to sign the employee consent form, but PIPA prohib- its organizations from requiring consent for the collection of in- formation beyond what is neces- sary to provide a product or ser- vice, as a condition of supplying that product or service. The board found that the breadth of information sought on the medical forms was too broad and created the risk that extraneous information would be received. The medical forms should be "precise with respect to the type of medical information being sought" to avoid misunder- standings, said the board. The board found that the request for primary and secondary diagno- sis, detailed medical history, and detailed information on treatment and test results was intrusive and unnecessary for the purpose of pro- viding STD benefits. "Information is requested on other medical conditions that are present even if they are not the direct cause of the absence from work requiring an even wider range of medical information," said the board, noting that the physician should only have to "ad- vise of the general nature of the medical condition that is causing the employee to be currently ab- sent from work." The board also found that the consent form was too broad in asking for consent of any health- care practitioner or clinic that had medical records related to the current absence, although it reasonably limited the informa- tion to that related to the current absence and related health condi- tion. The board determined that the medical forms were "overly broad, unreasonable, and vio- late the collective agreement." It left the matter with EPCOR, the union, and the benefits provider to revise the medical forms to "strike the appropriate balance" between the information needed to provide STD benefits and em- ployee privacy. Reference: EPCOR Utilities and Civic Service Union 52. James Casey — chair. Craig Neuman for employer. Leanne Chahley for employee. June 14, 2021. 2021 CarswellAlta 1426. COVID-19 antigen screening program that was part of a pilot project spearheaded by the On- tario Ministry of Health. The pro- gram's purpose was to assess the value of a new type of screening test as a way to support employee safety and keep businesses oper- ating in different workplaces. The program required all individuals at affected job sites to submit to the rapid antigen screening pro- tocol (AP test) twice per week to gain access to the worksite. The AP test was performed with a throat and lower nostril swab by third-party healthcare profes- sionals and it took about 15 min- utes to obtain results. Employees were paid during the time spent taking the test and waiting for re- sults. Workers undergoing the test had to provide contact informa- tion so they could be notified of a positive result, but no personal health card information was col- lected. Anyone could refuse the test, but they would be denied ac- cess to the worksite. From September 2020 to April 2021, there were nine confirmed cases of COVID-19 at the down- town Toronto job site, but all were detected outside the workplace. On April 28, 2021, EllisDon an- nounced that the testing would be expanded to include job sites where the owners hadn't express- ly approved the testing, because of increased case numbers and more contagious variants that were circulating. At the time, there were four active workplace outbreaks at EllisDon sites in To- ronto, although none were at the downtown job site. The union filed a grievance, claiming the expansion of AP testing was a violation of the col- lective agreements for both Ellis- Don and Verdi workers, as it was invasive, experimental, and could produce false positive results. The arbitrator noted that it had been established in previous jurisprudence that the unilat- eral implementation of a policy is acceptable under management rights if it is reasonable. Con- struction workers provided an essential service and put them- selves at risk during the pandemic — particularly since the nature of the construction industry some- times requires contact closer than six feet and employees regularly move between job sites, allowing viruses to spread more easily, the arbitrator said. Although the union pointed out that Verdi workers worked in an open-air environment and there was no evidence of spread at the downtown site, the arbitrator noted that there were outbreaks at other sites and there were still nine cases at that particular site. The risk of COVID-19 spread was "not hypothetical or speculative," said the arbitrator, adding that the open-air environment didn't eliminate the risk. The arbitrator found that the rapid testing policy included "sig- nificant efforts" to protect em- ployee privacy and dignity. As a result, it was a reasonable exercise of management rights with a goal of reducing the risk of spreading COVID-19 — a legitimate mea- sure to protect the business and employee safety, said the arbitra- tor in dismissing the grievance. Reference: EllisDon Construction and Verdi Structures and Labourers' International Union of North America, Local 183. Robert Kitchen — arbitrator. Christopher Fiore and Erich Shafer for employer. Ryan Newell for employee. June 10, 2021. 2021 CanLII 50159 Efforts on privacy, safety made implementation legal Employer went beyond what is necessary: arbitrator < COVID-19 pg. 1 < STD pg. 1 August 9, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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