The Boss Wants your Medical Records? Call the Union …Quick!

your-medical-history

All of us at YEU are concerned for the privacy of YG employees and the protection of their personal & private medical history.

Sometimes workers must provide their employer with medical information to access a workplace accommodation or receive benefits. The right to privacy is quasi-constitutional, meaning it can’t be set aside or trumped by other policies or rules, so any exceptions to that right must serve a legitimate purpose. Any information shared has to be handled with extreme caution. An employee’s medical condition must have a genuine impact on their work, affecting attendance or creating performance issues. Without a significant impact, the employer does not have a right to medical information- period.

Employees seeking a medical accommodation are obliged to provide some information to the employer; we don’t dispute that. The information must be limited to prognosis and limitations or restrictions that would affect your ability to perform your job. Often though, there is uncertainty about what the employer is entitled to, and how they should be using and protecting this information. Your diagnosis is your business, not your employer’s. Requests for information or history beyond what is genuinely needed are invasive;  employees can never be sure who will see their private information once it has been provided.

We know of many instances where the Yukon government has collected extensive medical information on employees, far beyond what is required to access benefits or develop an accommodation plan. In several cases, information about other family members has been collected and shared – clearly without their knowledge or consent. Over time, these reports have been copied, e-mailed and viewed by many people in various government departments as well as other service providers.

This should never be allowed to happen; it can be very distressing for the workers involved, and is a significant concern for the union. Many employees do not ask for the union’s help at the beginning of the accommodation process, and end up providing a lot of unnecessary and deeply personal information to their employer.

An employee should share medical information only when absolutely necessary, and only the information absolutely required to reach an accommodation. Any general requests for medical records should be refused. The employee should also refuse to authorize any employer representative to speak with their doctor directly. A reasonable alternative is to have the employer write their questions out so that the employee can discuss it with their doctor and consent to specific disclosure.

YEU has asked the Privacy Commissioner to examine Government of Yukon’s processes around collecting, using, sharing and retaining medical information related to the disability management and accommodation process. In the meantime, we can help employees navigate the inquiry and accommodation processes and support employees in protecting their privacy.

Employees should contact YEU before agreeing to share any medical information. Call 667-2331

Bad Decisions at YG

cropped Steve in black & whiteAre Yukon Government’s Managers and Deputy Ministers intentionally making bad decisions? Maybe it’s a lack of understanding or an information vacuum that makes for face-palm results on critical cases? Either way it frustrates the hell out of me.  It’s YOU, the members we represent, who suffer from some very bad decisions at every level of the grievance process.

I attend many complex representation meetings including policy grievances, 3rd level grievances and arbitration hearings.  This isn’t standard for an elected official of YEU but  I want to observe the process. Poorly considered decisions result in grievances being referred to PSAC for arbitration, lengthening the process & leaving workers in limbo for years.

The cases that go this route include dismissals, lengthy suspensions, human rights complaints and issues of accommodation. The process can drag on, and the uncertainty impacts an individual’s physical and mental well-being & livelihood.

The cases don’t start out terribly complicated, so what happens?  To answer that, we need to look at the first step in a grievance process. This varies by employer but typically starts with an immediate supervisor.  Most of these individuals aren’t trained to solve complex human resource problems – they are intelligent and well-meaning people – but they’re set up for failure by their employer. They are not given the freedom or the tools they need to be successful.

We see good people promoted into supervisory positions because they know the work; they have the knowledge to perform the job but aren’t given labour relations training. It’s not just the supervisors who lack training either – the same is true for all levels of decision makers – Human Resource Advisors, Directors, CEOs and Deputy Ministers.

Accommodating a physical injury is straight forward – an injured worker is usually off work for a short period of time. Upon a return to work, limitations may include how much weight can be lifted or how long the worker may spend at a dedicated task.  Mental health issues, invisible disabilities or addictions also require accommodation, the requirement is entrenched in law.  This is where we encounter a minefield of miscommunication and a lack of understanding.

Supervisors need proper training to have difficult conversations with workers. Without the right skills, sensitive personal information that might inform a supervisor’s decisions can be misunderstood, inappropriately shared or lost in translation.
An attempt at resolution can quickly turn into a performance management issue & rather than achieving an accommodation, struggling workers are disciplined.

By the time someone figures out what needs to be done, all positions are firmly entrenched and the opportunity to problem solve is long past. Few directors, Deputy Ministers or CEOs are willing to rule against those below them; it reflects badly on the organization and frankly, most of the higher ups haven’t received the training needed to know better.

After a few agonizing rounds of bad decisions, a case may end up referred to arbitration, and the people with the knowledge to find a resolution get involved at last. That sounds like a good & positive thing, doesn’t it?  Sadly, very few settlements are actually awarded by an arbitrator’s decision.

Most employers offer to settle prior to the arbitration hearing, or during the proceedings. Why? If an arbitrator makes a decision in favour of the worker, it is precedent setting and becomes part of the public record. A settlement acts as a gag order – instead of public accountability, the matter disappears.

By the time a case reaches this point, the worker involved is often truly suffering either mentally or financially.  While it would be great to stand on principal and hold out for a favorable decision and a culture change, it’s rarely feasible or recommended. Enough is enough and peace of mind comes first.

YEU won’t recommend a member continue a struggle just to achieve a ruling.  Settlement offers are usually enticing enough and the grievor weary enough that they accept the settlement offer and try to rebuild their lives.  Of course, without a binding decision, the employer is free to continue the practices that initiated the grievance process in the first place.

It’s true that not every employee is a model worker.  Management has the right to manage and we respect that right when the employer operates in good faith.  The union is willing to have tough conversations when members seek representation; that’s part of our job and reflects our obligation to the membership at large.

Some supervisors tell us they feel inadequately trained in labour relations and human resources.  If the employer won’t fulfill their obligation, we’ll be glad to step up to help you get what you need.

Congratulations to employers who build strong teams through appropriate training and empowering policies. To the rest of you (and you know who you are) please put aside your pre-conceived notions, prejudices, superiority complexes and whatever else motivates you. Treat Yukoners – our members, with the dignity and respect they deserve.

Straight Talk: The Independent Medical Examination or IME

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If you have an illness, injury or disability that impacts your work temporarily or long term, you may require an accommodation, need extended leave and/or disability benefits. Accessing any of these requires documentation, including proof of your medical circumstances. If your employer requests an Independent Medical Examination or IME, there are a few things to know.

What is an IME?
An IME is an examination by a medical professional who does not have a therapeutic relationship with the patient. Often, the IME doctor is a specialist chosen by the employer, and there is a contractual obligation to provide a report to the Employer on their findings.

When is an IME requested?
Your employer may request information to determine that your illness or disability is genuine and the impact it will have on your attendance. As a last resort and where the Collective Agreement allows, your employer may require you to attend an Independent Medical Examination (IME) at their expense.

Why can’t I just provide a Doctor’s note?
Doctor’s notes that say “Can’t attend work for medical reasons” or “off work for 30 days” or “patient needs new supervisor” are not well received. The Union often hears of employees denied access to their sick leave benefits because their medical notes are seen as insufficient to prove they are or were unable to perform their duties because of illness or injury. Similarly, notes that reflect numerous restrictions may compromise the employer’s ability to accommodate the employee.

When a medical certificate is requested, it should confirm a bona fide medical condition, provide information about the nature of the condition, explain your prognosis as it relates to the workplace and your return to work, and list any restrictions or limitations on your ability to perform your duties. Ideally, your medical practitioner will provide objective medical evidence about your limitations as they relate to your job so that your employer can respond with a reasonable accommodation or help you access disability benefits.

Do I HAVE to provide an IME if they ask?
You can refuse to attend an IME, but this may result in delays returning to work or denial of sick leave and other benefits.

When an employee is dealing with multiple or chronic medical conditions, a mental health issue, a substance use issue, workplace conflict or when there is a mix of culpable and non-culpable behavior, it can be more difficult to identify the medical restrictions without breaching the employee’s privacy.

If you are asked to provide consent to the employer to speak with your doctor, you should preview the questions the employer wants to ask and limit your written consent to those questions. Do not consent to open questions such as “please explain…”. 

ASK QUESTIONS! Who will get to see my information? How will my information be used?

You are not obliged to consent to release medical information (medical/family history, test results, diagnosis) to your employer. You have the right to alter any consent form to protect your privacy. There are benefits to an IME, but also some important things to keep in mind to protect your rights and privacy:

Pros:
•Access to a specialist more quickly
•Comprehensive medical exam and report for your treatment provider
•Clarity around your medical condition, treatment and restrictions

Things to think about:
•An IME can be invasive and should only be requested as a last resort, where other appropriate medical queries have not resulted in sufficient information to explain ongoing absence or develop an accommodation.
•Many Collective Agreements oblige the employer to follow the recommendations in the report, which may not be consistent with your preferences.
•You are entitled to your privacy. Your employer does not have the right to information about your diagnosis, test results or your medical history.
•The employer does not have the right to share your medical information without your expressed, specific consent.

When medical issues affect you at work please contact us. Let us help you navigate the system and protect your rights.

Straight Talk: Addiction & Accommodation at work.

addictDid you know that alcoholism and addiction are considered disabilities?

A seven year legal battle for two Ontario residents and a ruling by the Supreme Court of Canada set a legal precedent on what constitutes a disability under Human Rights legislation. Employees who suffer from an illness or injury that restricts or limits their ability to perform their duties are considered to be “disabled” under employment law; addictions and alcoholism are considered disabilities.

Under the Yukon Human Rights Act, an employer must accommodate disabled employees – this is the “duty to accommodate”.  The right to equality for persons with disabilities is entrenched in Human Rights legislation across Canada.   If an employee suffers from an addiction they may have access to a workplace accommodation while they are recovering.

We say may because the duty to accommodate usually follows disclosure by the employee. The employee may believe they suffer from an addiction but unless this is disclosed, it’s tough for the employer to know what supports are appropriate.

An accommodation can be anything from  altered  hours of work, time off to attend counseling or treatment or even modified duties.  It may mean working in a different position or location. The intent is to reduce or eliminate the risk of further injury or illness, to meet operational needs and to allow the individual to continue working while recovery takes place.

If an employer suspects a medical condition may be affecting an employee’s performance, they have a duty to inquire. This means they may ask the employee if there are any medical restrictions or limitations, or if they have a medical condition they should be aware of.  This isn’t an invasion of your privacy just for the sake of asking; if you are asked, it likely means your employers have noticed you are struggling.

What can you do if you believe addiction is affecting your ability to carry out your duties?  Ask for help! Talk to your family or friends, consult with your family physician and tap into your employee assistance program.

If you believe you need a workplace accommodation, ask YEU for a union representative to help you talk to your supervisor.  Some employers offer financial support to attend treatment programs, follow up counseling or other rehabilitative programs.  All employers have a legal duty to accommodate an employee to the point of undue hardship.

If you’re in doubt about your responsibilities and your rights as a disabled employee or if you have any questions please contact YEU and your human resource branch. There is confidential support available and all levels can work together to help.  For your protection, it makes sense to make sure you have union support when you approach your employer; we will be with you every step of the way.

High-functioning Autism creates challenges for the public sector.

CBC Reporter Julie Ireton’s report on the autism spectrum in the workforce. This interesting article highlights the challenges faced both by workers impacted with ASD and the challenges of creating work spaces best suited to their needs and skills.

Accommodation and understanding will go a long way toward ensuring workplace diversity reflects the strengths of all workers. The question of whether self identification will empower or hamstring workers is worthy of further discussion.

Suzanne Ford consults with Jordan Edwards about better awareness for Asperger's Syndrome in the federal workplace. (CBC)

Suzanne Ford consults with Jordan Edwards about better awareness for Asperger’s Syndrome in the federal workplace. (CBC)