Canadian HR Reporter

September 7, 2015

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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CANADIAN HR REPORTER September 7, 2015 NEWS 3 societal and regulatory authority. "It has become and will become very shortly a very significant profession and... if you're doing counselling of any sort, small c or capital C, you should be regulated ... so there's a supervisory body." There are different types of training and programs that thera- pists can go through to get that specialization, according to Eric Rubel, Toronto-based national director of clinical services and organizational health at EAP pro- vider Aspiria. "Some go through a very for- mal academic program, some go through more shorter-term ad- dictions training," he said. "You do want to have a specialization in addictions when you treat ad- dictions, for sure, but how do you define specialization? Is special- ization defined as someone who does a three-month course in addictions versus someone who does a three- or four-year degree in psychology with a focus on addictions?" When it came to the decision to inform the employer about the cancer situation, this was a serious breach of confidentiality and pri- vacy, said the arbitrator. "To tie the disclosure of Em- ployee M's diagnosis of cancer and surgery to concerns for the potential for relapse, standing on its own, is simply too facile to jus- tify the disclosure and… violates the counsellor's obligation of con- fidentiality towards the employee entrusted to him." It's a tricky area, since the com- pany is paying for the EAP, said Willbe, but "unless there is a real health and safety issue because the person's working on very sen- sitive job, confidentiality should rule and if it is not, I think the em- ployee has a right, and the union, a right to complain.... I'm going to relapse if I can't trust the person I went to for help." Counsellors want to support their clients but they have to keep in mind the employers' interests as well, said Rubel. "at's not to say that confiden- tiality or all that therapist-client confidentiality should be thrown out the window — that's abso- lutely not the case," he said. "Sometimes, it can be difficult, it can be challenging, and what needs to happen is a good clini- cian and good clinical department supporting that counsellor, like the EAP-type department, would be able to support that counsellor and help as a team to determine what can be or what should be re- vealed to the employer." If it gets out to the rest of the staff that information is being dis- closed to the employer that really shouldn't be, that's going to take away from the integrity of the EAP and a lot of confidence will be lost both on the part of the employee and employer, said Rubel. As for holding counselling ses- sions in a private home, that is acceptable and common in pro- fessional services, said Picher. But holding sessions at public loca- tions was "expressly contrary" to confidentiality requirements. "Counsellor J did fail in the duty of confidentiality and privacy which he owed to all of the employ- ees in his care by placing himself and employees he was counselling in a variety of public places where the employees were exposed." If an employee ever is unhappy with his counsellor, he can request another, said Rubel. "e therapeutic relationship is really important so if a cli- ent... meets the counsellor and it doesn't seem that it's a good fit for him or her, then we will be more than happy to provide another counsellor to replace the other one," said Rubel, adding some people prefer older or younger therapists, or male or female ones. "Whenever possible, we try to match those requests." Employer's liabilities In the end, it appears the employer only became aware of some of the allegations at a grievance meeting in April 2014, found the arbitrator. "Be that as it may… it cannot be seriously argued that the HEA can disclaim all responsibility for the actions of Counsellor J on the basis that he did not specifically know of them or endorse them," said Picher. Despite the contracts with Medavie and Shepell-fgi, Counsellor J was effectively cho- sen by the HEA, he said. "e employer cannot disavow or escape responsibility for the actions of its chosen agent and must bear liability for any viola- tion, in the course of his duties, of the rights of employees in the bargaining unit for which he is responsible." But while there were instances where the privacy and confiden- tiality rights of employees were denied, the measures of damages must be kept in "reasonable per- spective," he said. "ere is no medical evidence or other documentary material filed by the union before the arbi- trator to suggest or confirm that the employees affected suffered substantial medical impacts, such as clinical depression, by reason of their dealings with the counsellor." As a result, for the violation of their rights of privacy and confi- dentiality, one employee was to be compensated $5,000 and an- other $2,500 while a third was to receive $1,500 for unprofessional communications. And any reports from the coun- sellor containing inappropriate personal information, such as a private medical diagnosis, were to be purged. "I'm not faulting employers because this is not their specialty, they go to a legitimate, recognized provider and say, 'Can you provide me with an EAP?' and they trust it… but no one did any checking in this case," said Pink. "In the end, the employer said, 'We won't use him anymore' so it's all kind of moot in the end, but it's a pretty good shot across the bow as to how these things ought to work overall." ADDICTION < pg. 2 "e employer cannot disavow or escape responsibility for the actions of its chosen agent and must bear liability."

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