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

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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

The Letter of Expectation: What Does it Mean?

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The fact finding meeting is over; you may never hear about the issue again, or the employer notifies you that they have come to a conclusion and you’re called for a follow up meeting.

During the meeting your supervisor reads out loud and presents a letter of expectation (LOE);  welcome to the performance management stream and the right of the employer to reaffirm the roles, responsibilities and accountability of your position within public service in Yukon.

Firstly, a letter of expectation is not discipline.  While it may feel like discipline (and trust me I know this feeling, having been through this process), it is not intended to be, nor is it a disciplinary action. 

A properly formatted letter of expectation should clearly outline the issues the employer has identified that need to be rectified, the changes they would like to see, the timeline for this change and the support and resources for assisting with process.

What happens after I receive this letter?

This is a shared responsibility; you as a public servant have been advised of your employment expectations and you should seek to meet the mark. It will feel like there is extra scrutiny on you and this is natural and actually accurate, but not in the “I’m gonna get you” way. 

After an LOE is delivered the employer is watching you, not to note your failure but to ensure your success.  It is incumbent on the employer to assist you in meeting the requirements of your position and the expectations that have been outlined. 

YTG (the employer) needs to provide access to support and resources to ensure you are successful.  Bear in mind  you are a big part of this success and it is incumbent on you to meet the requirements of your job contract with YTG. As the cliché goes it takes two to tango and for the most part you are the lead in the dance.

 How long does the LOE stay in my file?

As letters of expectation are not discipline they are not part of your file.  When it comes to your “file” you only have one and this is held at the Public Service Commission (you can make an appointment to see your file with PSC if you would like to review your public service employment file).  

Your LOE will be held by your supervisor and will not be in your “file” but will be kept for reference for the timeline provided in the letter.  An LOE will be deemed complete at your next PPP (Personal Performance Plan) provided the issues have been resolved and have not continued.  Now, if the behavior in the letter continues, this can open up the disciplinary stream (which I will cover in another post).  But we all know that this won’t be an issue……..right?

 A few other details….

 Letters of expectation do not always come from fact finding meetings. Employment behaviors can be noted and dealt with outside of fact finding meetings and delivered at the discretion of the employer.

  • Union representation is not required at the presentation of an LOE as they are not disciplinary, however, it is recommended by YTG that if it will be of benefit to the employee YEU representation can be in attendance.
  • As always, if there are questions or concerns call the YEU office at 667 2331 or call me directly at 334 4331, remembering there is a timeline for issues of approximately 20 days, so call early and get the answers.

 Yours in solidarity,

Rob Jones

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President, YEU Local Y010

 

 

The YG Fact-Finding Meeting; What to Expect

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It’s another day at work, everything seems to be going well and it’s shaping up to be a good day.  Then it happens; you receive a request to attend a meeting the following day and your supervisor advises that you are entitled to bring a union representative to the meeting!

What has happened? Why won’t they tell me what the meeting is about? What are the specifics? Aside from being frustrated that you can’t have these questions answered, being called to a meeting relatively blind is also incredibly stressful.

You have been called to a fact finding meeting.

Fact finding meetings are a very common and normal occurrence in Yukon Government workplaces.  When a supervisor or manager receives a complaint or incident report involving a staff member, they are required to investigate – this means they need to talk to you and get your version of the incident or event. If you have been asked to such a meeting, you must attend.

The fact finding meeting is based on the premise that there has been a problematic event or incident of some kind. The employer needs to ask questions to determine what happened. You might not be directly involved; you may have witnessed the incident or have information that may help to make the situation clear.

These sessions are not meant to be punitive, but should offer space for an open and honest dialogue on the event being discussed. These conversations can feel incredibly stressful for the employee and may feel like a cross examination, but that is not the intent. Your union representative will be there with you to protect your rights.

Why do I need a union representative?  It is incumbent on the employer to advise an employee of the need for representation if there’s any chance of discipline down the road.  Discipline is not always involved, but the employer cannot deny a member representation then dole out discipline after the fact; this goes against the principles of the Collective Agreement as well as the principles of natural justice.

Why won’t they answer my questions about the event or incident before the meeting?  Well, this is twofold; while they may state “we are going to be discussing event ABC” they cannot discuss the actual event outside the meeting. Firstly the employer would like to see unchecked, honest reactions to the questions posed.  Secondly if the employer engages in this conversation it may be construed as part of the fact finding session when the employee has not yet had an opportunity to secure union representation.

These meetings are usually less than an hour long, depending on the events and issues at hand.  During these sessions the employee, the employer or the union representative can ask for a break to have discussions or sidebar chats.  These meeting should be, and for the most part are, very respectful and smooth.

What can I say? What can’t I say during these sessions?  The intent of these fact findings is to bring the facts to light.  The employee is responsible to be open, honest and accountable. Your union representative is there to protect your rights and ensure proper process is followed, but they are not defense attorneys and will not be using legal gamesmanship to avoid the issues at hand.

This is a meeting about FACTS, not about what you may think of a situation. Avoid deflecting accountability by drawing others’ poor behavior into the conversation.  The employer may ask what others thought or said, but you should avoid commenting on how you believe others may think or feel about the incident or parties involved.

Do I get to have my say in the meeting? Of course – this is not a one sided barrage or cross examination.  During the meeting you will be asked several times if there is anything else you would like to add. This is the time where pertinent items to the event can be offered if they have not been addressed in the questioning.  This however is not the time to deflect accountability, point out others’ poor behavior or inject supposition or rumor into the meeting.  Your additions should be factual, pertinent and meaningful.

It is also likely that the employer will have investigated the issue by chatting with other employees named in the event.  These sessions are confidential and private, and employees are advised not to speak about these meetings outside of the HR/union/supervisory pathways.

How do I get Union representation?  Call 867-667-2331 as soon as you’ve been notified of the meeting, and ask for the intake officer.  They will ask you for the meeting time & location and ask whether have any idea what the meeting may involve.

Once this information is collected, YEU will make a call to the Shop Steward group to see who is available to attend your meeting.  Once the Shop Steward has confirmed their availability, the Steward will contact you to discuss the process and answer your questions prior to the meeting. Some Stewards will contact you well ahead of time while others, depending on time of notification, may make arrangements to speak with you just prior to the meeting.

What can I expect once the meeting is over? Timelines are usually established at the end of the meeting.  Your supervisor or the HR Representative will notify you of the timeline and might advise you that another meeting will be requested if more questions arise during their follow up.  Generally, the post-meeting fact finding time is one to two weeks.

What will happen to me? This depends on the incident and your role in what transpired.  One possible pathway is the performance management stream, another is discipline.  I will cover these topics in an upcoming performance management and discipline article on the blog; keep an eye out and have a read.

Remember, fact finding meetings are a normal part of any workplace and your YEU representatives are there to support you through these meetings.Rob-Jones-Y010-President-2016

In Solidarity,

Rob Jones

President – Local Y010

 

Trans at Work; Dignity & Discrimination in Yukon

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This week we have seen discrimination at its ugliest, its most vile. We watched in horror as news broke from Orlando Florida of the hate-inspired murder of so many at a gay nightclub but this is only the most recent in a long list of attacks.  While we may try and label those as random acts committed by crazed killers, the truth is that systemic discrimination and inequality maintain an environment where such hatred can flourish. The fact that media is hesitant to call this a hate crime illustrates the pervasive discrimination this community consistently faces.

The Liberal Government has introduced legislation to protect transgender people from discrimination and hate crimes. The bill would amend the Canadian Human Rights Act, prohibiting discrimination on the basis of gender expression or identity. Prime Minister Trudeau stated “Far too many people still face harassment, discrimination and violence for being who they are. This is unacceptable”.

YEU has been working alongside our trans and gender non-conforming members, urging employers to ensure difference does not preclude employment, workplace safety or dignity. A system designed without thought for those outside the strict male/female binary ensures trans workers face discrimination at every stage of their employment journey.

Within the corporate structure of YG, workers regularly encounter incidental discrimination in the form of old policies, language and practices established before anyone considered inclusion as an objective. That type of discriminatory practice and language is not difficult to remedy, if the will exists.

From the moment an employee receives their offer of employment, they are forced into a system that makes all gender identities besides male and female invisible.  To accept a job with YG, individuals must log in through an online portal and select a gender from a drop down menu – the options are Male, Female and Unknown. For a worker who is clear in their gender identity, “Unknown” is an affront. This is gender-based, systemic discrimination.  Even the forms required to access medical leave or to request accommodation offer two gender options; male & female. In cases where a trans worker is seeking accommodation, the forms required for accommodation cannot be completed.

Some expressions of intolerance are more overt.  Trans or gender non-conforming workers are afraid to be themselves in the workplace for fear of bullying or jeopardizing career advancement.   The workplace culture permits supervisors to use their own personal discomfort with others’ gender presentation as a reason to restrict access to training, to promotion, to employment itself.   In strict gender dichotomous work-sites, the need to accommodate workers is seen as too great a burden and employees are at risk of being performance managed out of work. Of course other reasons are given officially, but it’s easy to see prejudice at play. A tranPULSE study from Ontario notes that 13% of transgender people report they have been “constructively dismissed” for being transgender.

Some employers are doing a better job. The City of Whitehorse has initiated required LGBTQI Welcoming Workplace training for all staff in an effort to create an equitable work environment and to ensure clients don’t experience discrimination when accessing City services.  Yukon College has taken steps as well through Transgender Remembrance services. Private employers like Starbucks have policies & literature educating employees on the sensitive use of pronouns, and are quick to act in support of a worker who faces discrimination from colleagues or a supervisor.

Until the Human Rights Act is amended to explicitly include gender identity and expression as protected grounds, trans and gender non-conforming Yukoners are covered under the protected grounds of sex.  Employers must respect that trans workers need to be in safe and appropriate work situations. Forcing them to identify gender at every step of their process, demanding doctor’s verification of gender identity, encroaching on dignity through intrusive and unnecessary procedural systems is a violation of the Human Rights Act.

Yukon Employees’ Union invites the Government of Yukon to act as a model employer. Create gender neutral washrooms and remove the need to identify gender. Entrench policies and procedures which recognize some workers are gender non-conforming, trans, inter-sex and 2 spirited. Work collaboratively with the trans community to identify where gaps exist and how best to bridge them.

Recognize that accommodation requests from trans employees are not intrinsically medical in nature and stop demanding medical certificates for non-medical issues. Acknowledge your responsibility to protect workers, no matter their gender identity, under the Human Rights Act.

Yukon Government is re-launching a diversity training program through the Yukon Women’s Directorate entitled GIDA, Gender Inclusive Diversity Analysis. The GIDA documents state “Good public policy works toward ending discrimination in Yukon society and creating a society that includes everyone.” Sadly the document refers to intersectionality & inclusion while only ever referencing women and men, boys and girls. There is not a single reference to trans or gender non-conforming individuals nor any mention of those who exist outside the binary. Even this training program, designed to help identify & eradicate discrimination, discriminates.

An authentic culture of inclusion will benefit our Yukon community far beyond the workplace doors. We challenge you to create a new standard of equality and inclusion to help diminish hatred and violence.

Yukon’s Community Nurses Need Resourses STAT!

Community Ncarmacks-health-centre-signursing Stations serve the medical needs of residents and visitors in some of the most isolated corners of the Yukon.  In the absence of multiple healthcare facilities, these clinics offer a dizzying array of services from first response to referral. When doctors visit from Whitehorse, the health centres get even busier. Community Nurses provide prenatal care, counselling, nutrition support, maternal health programming, diabetes education and more.

Year after year more programs are added to the responsibilities of Community nurses with no increase in staffing to reflect the added workload. Consequently, nurses are frustrated and burning out; there simply aren’t enough hours in the day. They are relied upon heavily by local RCMP detachments and work hand in hand with social services and First Nations. In communities with volunteer EMS teams, the nurses must frequently step in to fill the gap when volunteers are unavailable and resources are few.

Nurses are at daily risk of workplace violence. In small communities they face dramatically increased incidences of physical & verbal abuse on the job. Respite is critical to ensure these workers stay healthy. Time away from the intense stress levels of a sometimes 24/7 job can make the difference between doing the job well and suffering a tremendous physical and emotional toll.

In June of this year PSAC’s Regional REVP and National Vice President travelled to several Yukon Community Health Centres with me. Their conversations with nurses in those centPelly Crossing Health Centre signres were sobering.

Despite improvements to Collective Agreement language in recent contracts, the employer continues to deny earned vacation leave to exhausted nurses, citing “operational requirements” and lack of staffing.  Staffing levels are a genuine concern. When a nurse works an on-call shift rotation lasting up to 10 days, the resultant lack of sleep and downtime can be nearly debilitating and there’s often no relief in sight.

Nurses tell us that vacant positions remain un-filled; medical centres that are intended to be staffed by 2 nurses at all times frequently rely on a single nurse with no back-up. A 7 day work week is the rule and not the exception and a knock on the nurse’s door at home in the middle of the night is all too common. No matter how far in advance leave is requested it is often denied simply because there is no-one available to cover. Nurses often seek coverage themselves, in fact, before applying for vacation.

These nurses fill a vital Meadow-with-mug CMYKrole in the communities they serve. Their level of personal sacrifice is testament to their degree of commitment and professionalism, but there must be relief in sight.  As YEU and YG enter bargaining this year there is hope that some of the chronic issues plaguing Community Nursing will be resolved.

Unfortunately there is only so much we can accomplish at the bargaining table. The issues Community Nurses face will only be resolved if the Yukon Government steps up, takes notice and shows the political will to do so. Nurses simply cannot continue to provide the level of care they so desperately want to, that all Yukoners expect and deserve, with ever dwindling numbers and little hope of meaningful change. YEU’s voice and the voice of the nurses will only go so far. If you live in a community or have ever had to rely on this amazing group of professionals I urge you to write to your MLA, the Premier, the Minister of Health and any other entity that will listen. It’s your health, your family’s health and that of the nurses at stake.  Ultimately it’s up to the politicians to ensure adequate healthcare resources are available to everyone…especially those providing the care.

In the meantime, we salute all nurses for the important and difficult work they do.

Steve Geick, YEU President
& Proud Community Nurse

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Feeling silenced? As a public servant, how outspoken can you be during this campaign?

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This Federal Election is unlike any we’ve seen before. It’s the longest campaign ever but it’s also taking place during something of a communications revolution. Sure we had Facebook  during the 2011 Federal Election but we hadn’t yet hit the user density of today and we hadn’t yet heard of things like Snapchat & Vine. Few Yukoners were tweeting in 2011 and we still naively believed that our privacy settings guaranteed us some degree of…well, privacy!

A lot has changed. Most of us are skeptical about how private our posts are, and we should be. What we say online in our off-work hours can have a profound negative impact on our careers. The recent suspension & subsequent retirement of scientist & public servant Tony Turner after his protest song Harperman went viral is a case in point. To be fair, it’s not only public servants who are felled by their online activities; in this election we’ve witnessed a never ending parade of disgraced candidates whose tweets and status updates have made short work of their political aspirations.

Bruno Thériault, director general of Justice Canada’s workplace branch recently sent a memo to the employees in his department. The memo, heavy handed and intimidating, sends the message that public servants should avoid using social media altogether during this election.

“Recent memos being sent to federal public service workers seem designed to discourage our members from exercising their legitimate rights”, says Robyn Benson, president of the Public Service Alliance of Canada PSAC). Read Ms. Benson’s blog post “We shall not be zipped” here.

Union members and all employees have a right to freedom of expression protected by the Charter of Rights and Freedoms, even if they work for the federal government.  Expressing political opinions or sharing political content on social media is a form of political expression and is protected by the Charter. Online political expression does not benefit from any greater or any less protection than other forms of political expression. You have the right to share political content on Facebook, Twitter or other social media accounts as long as you do so outside your hours of work and you don’t use the employer’s equipment.

These rights are not absolute, so please consider the following carefully before you post, share, or tweet.

1. Don’t identify yourself as a government employee or include information or comments that suggest you are a government employee. Make sure your social media profiles don’t list your place of work or employer.

2. Consider your level of visibility and influence. Are you a supervisor? A public face of your organization?

3. Are you a union representative? Union representatives have greater freedom to engage in political activities however union representatives cannot make any comments about their employer that are reckless, malicious or dishonest.

So what’s the bottom line? Speak your mind, have an opinion, engage in the democratic process and be involved. While you’re at it, be wise, prudent and circumspect. And above all else, VOTE. Self censorship is only necessary in an atmosphere of mistrust and fear. Elect a government you do not fear.

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.