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

Straight Talk: The Independent Medical Examination or IME

confidential report

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.