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HomeMy WebLinkAboutPolicy 07-10-05 l.I:JI V~TZI:JI:J r --~O-;~"::I 'H bbtlb:l-:lb-:l ~UI'<::VYKOW5KI PAGE 05 IN THE MATtER OF AN ARBITRATION (Under the Ontario Labour Relations Act, J 995) BETWEEN: HAMILTON HEALTH SCIENCES (the "Hospital") -AND- ONTARIO NURSES' ASSOCIATION (the "Union") AND IN THE MATTER OF the arbitration of policy grievances concerning the administration of the sick leave benefits plan under the collective agreement between the parties. BEFORE: G. T. SURDYKOWSKI - Sole Arbitrator APPEARANCES: For the Ho:mital: Mark Zega, Counsel; Jane Gooding, Counsel; Cristina Vallonio, Labour Relations Analyst; Colleen Lynas, Labour Relations Associate; Kelly Corpt Mgr. Heal~ Safety and Wellness; Mary Gingrich, Disability Associate; Meaghan Hastie, Analyst (Attendance). For the Union: Kate Hughes, COWlScl; Nicole Butt, ONA COlmsel; CoHeen lonson, Labour Relations Officer, Pat MacDona1~ Bargaining Unit President and Local Coordinator; Connie Ross, Local VP and Grievance Chair; B.I. Swanson, Henderson Site Rep.; Cynthia Mascoll; Chedoke Site Rep.; Gail Molnar, MUNC Site Rep. HEARlNGS HELD IN HAMILTON, ONTARIO ON JANUARY 17 APRIL 27, 28, MAY 8,9. '. . . 24, DECEMBER 13,14 AND 18,2006, AND JANUARY 31, FEBRUARY I, 2, 7, 9,13,16,20, MARCH 6, AUGUST 22,23,2007. Copyright @ George T. Surdykowski AtbitrationIMediation Inc. 2007 [All rights reserved. Reproduction in whole or in part, in any form. or format; by anyone other than the parties, or for use in legal proceedings, for not-for-profit educational purposes, or as required or permitted by Jaw, without express vvritten. consent is prohibited.] l.UfU~f~l:Jl:J{ l.O;~"::I '11bbtlb:l-:lb-:l ~URDYKOW5KI PAGE 05 2 AWARD #1 "MEDICAL CERTIFICATE OF DISABILITY" FORM ISSUE I. m1:l!ODUCTION 1. This proceeding concerns two policy grievances. It bas been bifurcated into three phases. The Award numbers reflect the phase that the particular A ward relates to. I have previously issued Awards # 1 A (dealing with a preliminary issue in Phase # 1) and #2 (dealing with an Employment Standards Act issue in Phase #2). This Award deals with the Union's allegation in Phase #1 that the "Medical Certificate ofDisabiliti' application form for short term sick leave benefits that employees are required to subm.it is improper. Although the issue is restricted to the short term disability ("STD'~) requirements it encroaches upon retw1l to work issues. 2. Paragraphs 1-14 of the Introduction in "Award #lA - "Preliminary!' Issue" are an equally appropriate general introduction to this A ward. 3. However, it bears repeating that prior to the spring of2005 the Hospital's Employee Health Services ("EHS") Department processed sick leave benefits applications, and obtained information from employees for that purpose. EHS assessed or "adjudicated;' employee applications for sick leave benefits and determined in each case whether the employee was entitled to sick benefits. EHS also sought to facilitate early and safe retum.s to work, with necessary accomm.odations as required. Although there were (and are) confidentiality protections in place, EHS had to share certain limited information regarding employees' medical conditions with Hospital management in order to perform this fimction (see Appendix "AA" and paragraph 53, below). 4. The Hospital decided to outsource the short term disability ("STD") sick leave benefit application and assessment/adjudication function for operations and efficiency reasons. Cowan Wright Beauchamp eCowan") was the successful private sector bidder for this contract and took on the role and tlmctions formerly performed by EHS~ beginning on April 4, 2005 at the General lot:Jfl:J:J/.<:t:J1:J1 loO.:;):l 'H bbtlb:l-:lb3 5URDYKOWSKI PAGE 07 3 site, April 25, 2005 at the McMaster site, May 16~ 2005 at the Henderson site, and June 6, 2005 at the Chedoke site. The contract between the Hospital and Cowan in that respect (Exhibit #18 - the "Cowan contract") as produced, with financial details deleted as confidential and irrelevant and with emphasis added, is attached as Appendix "C" to this Award. I have included it in this A ward for the sake of compJ.eteness notwithstanding that this contract does nothing to resolve the matters in issue. A contract between the Hospital and a third party cannot give the third party any greater rights than the Hospital itself has with respect to bargaining unit employees. 5. The "Medical Certificate of Disability" (hereinafter referred to as the "Cowan form"), that Cowan requires all employees who apply for sick leave benefits to complete was entered into evidence as Exhibit #22. It is reproduced as Appendix "A" to this Award. The evidence includes three versions ofthe "Attending Physician's Statement" that the Hospital's EHS Department used over tbe years for that purpose before the Hospital contracted that function out to Cowan. On the face of these documents the most recent of these was "updated" in November 2002. For the purposes of this case, these appear to be substantially the same and I include only the most recent one as Appendix "AA" for comparison purposes. , 6. The Union alleges that bargaining unit nurses are being told that they must sign the consent in the Cowan form and provide aU of the information requested, and that they will be denied benefits if they do not do so. The Union asserts that the consent being required of employees in Section B of the Cowan. form is coerced, and is therefore not a true consent, and that the consent being required is in any event too broad or otherwise improper. The Union also objects to the reference in Section B of the Cowan form to a maxinuUll. reimbursement of$35.00 to the medical professional who completes the form. The Union alleges that Section C of the Cowan fonn requires employees to disclose confidential personal medical information that goes beyond what is necessary or appropriate for short term sickness benefits purposes, and wbich violates bargaining unit employees' collective agreement and statutory privacy rights. 7. The Union does not object to the use of a consent and medical information fonn for the purpose of STD benefits under the collective agreement. It recogni7..es that the Hospital is entitled to infonnation in that respect. The Union's concern is with the manner and scope oftbe consent, lol:JI I:J~I LVI:J r u_--:rl:). :;)"::1 'libbtlb:l-:lb-:l ~UI'<::VYKOW5KI PAGE 08 4 and the nature and extent of the confidential medical information that the Cowan form requires bargaining unit employees to provide. The issue in this case is not the extent of the consent or medical information that the Hospital can legitimately seek and use in any particular individual case. The Union acknowledges that a more intrusive investigation of the basis for an application for SID benefits may be appropriate in a particular individual case. The issue is the more general one: that is, what consent and medical information can the Hospital require every employee who seeks SID benefits to provide as a matter of course in the first instance, failing which benefits will be denied? That is an issue which is appropriately raised in a policy grievance, which is what I have before me. 8. In addition to vive voce evidence, I have been provided with hundreds of pages of documentary evidence. Counsel made oral and written submissions, and :filed numerous (48) Court and arbitration decisions in aid of their submissions. I find it unnecessary to review the evidence in detail, or to set out the parties' submissions even in summary form. I have reviewed the collective agreement, the legislation cited to me, and the evidence. I have read all of the authorities filed, and considered the oral and written submissions. Many of the authorities are of little or no real assistance, and I do not consider it necessary to analyze or even list them. I will address the evidence and arguments. and refer to the jurisprudence as I consider appropriate. I note that unless a different analysis in another jurisdiction is particularly persuasive, I consider it appropriate to give greater weight to the jurisprudence in the jurisdiction in which the case at hand is being litigated when there is a divergence of jurisprudential opinion between jurisdictions, and that is what I have done. 9. I note that there are other separately represented bargaining units at the Hospital. [ understand that the Hospital uses the same Cowan form and services for all of them. During argument in Phase 3 of the proceeding (i.e. after Phases 1 and 2 had been completed and while J was in the process of preparing this A ward) an award dated July 10, 2007 issued by Arbitrator Knopf with .respect to a dispute between the Canadian Union of Public Employees and the Hospital concerning the Cowan form and Cowan's conduct was brought to my attention. The Knopf Award in the "CUPE case'; arises out of a mediation/arbitration proceeding held the same day as that award was issued and concerns a different collective agreement bargaining relationship. It is lol:J/l:J~ILUI:JI loO.~"::I '1l.bbtlb:l-:lb-:l 5URDYKOWSKI PAGE 09 5 neither binding on me, nor of any particular assistancc. However, I was referred to it and I am constrained to comment on it in due course, below. II. COWAN'S EXPLA~4nON OF ITS FPRM; 10. As noted above, the Cowan form is reproduced as Appendix "At' to this Award. Exhibit #45 is typical of the letter that is being sent to employees who seek STD benefits. It reads (witb dates deleted as irrelevant and as having the potential to identify the employee to whom the particular letter was sent) as follows: As you are aware, the hospital has implemented a new process for Short Term Disability adjudication. We have determined that the Medical Certificate of Disability win be considered the satisfactory proof of disability that we require to justifY absences from the workplace as outlined in the Hospitals of Ontario Disability Incot1le Plan (1992), This will be required for all absences of 5 shifts or greater. Cowan Wright Beauchamp, will act on behalf of the hospital to review and assess this infonnation, in consultation with the Family PhYSician, and advise if there is medical to support the absence. This information will be held in the strictest coofidence with Cowan Wright .Beauchamp, and no infunnation with respect to diagnosis wilt be shared with any Hamilton Health Sciences employee, without the expressed consent of the individual employee in question. If employees do not CQnsent to Proyjding the Medical Certificate of Disability to the aooropriate Health l?rokssiQtlaJ. tben we will not be able to establish if proof of disabilitY has been rnc:=t,. and as a result. the employee will not be paid sick oay benefits. You have been absent as of_and at this time you stilt remain off You witl need to provide medical documentation to support that absence. Enclosed you will find a letter fur your doctor explaining 1he process and a Medical Certificate of Disability whicb your doctor wi II need to complete. There is a star on that form where you will, need to sign your consent. Please ensure that Cowan Wright Beauchamp receives the required documentation to support yoW' absence by ~.JfYOU are unable to provide this documentation. we will not be able to adiudicate YOU( claim.. sick-DaY benefits may not be in order. and an overpayment recovery would have to be set up. Enclosed is a copy of the brochure, which was attached to your pay stub on _, which explains and outlines the process. Also enclosed is a copy of the Attending Physician Statement that is required under th.is process. Tfyou have any questions or concerns about this process please contact (Emphasis added.) ~V(V~(LUUf ~U.~~ ....0000::1.,:)0.,:) ~U~VYKUW~Kl PAGE 10 6 11. Also in evidence as Exhibit #9, and reproduced as Appendix 44B" to this Award~ is the "Functional Abilities Form" e'F AF") that the Hospital is using for the purpose assessing employees when they are ready to return to work from an illness or injury. It is useful to compare the Cowan form to this F AF as well as the Attending Physician's Statement previously used by EHS. 12. Helene Santerre is the Cowan representative who drafted the Cowan form in issue, which she customized for the Hospital's use. She does not deal with the Cowan form on a day-to-day basis but continues to have oversight responsibility for it. Santerre testified that Cowan ~ s role in the process is to provide sick leave adjudication and to ensure that employees who apply for short tenn sick leave benefits obtain appropriate treatment. She says that Cowan can facilitate medical testing and ,specialist consultations, and provide support to employees and facilitate their return to work. Although Santerre testified that all of the Cowan employees who perfonn these various functions are medical health professionals it is clear that that is not the case. On the face of its proposal to the HospitaJ at least one Cowan employee (Geil) was not a medical health professional even then, and another non~medica1 health professional (Higgenbotham) subsequently became . . . . directly involved. Cowan also seeks to identify s.ic.k claim trends with a view to reducing these through wellness programs. Santerre conftnns that Cowan ~ s role is to report on the status and make recommendations about sick benefits claims, and that the Hospital has the final say in that respect 13. Santerre testified in examination-in-chiefthat when she was drafting the fOUll. she looked at the 1980 and 1992 HOODIPs, the Hospital's existing policies and the collective agreement. However, she says that she did not look at the collective agreement to ensure that the Cowan. fonn was consistent witb it. lndeed when asked in cross-examination whether she (or Cowan) reviewed the collective agreement (which include the 1980 and 1992 HOODIPs) in order to ensure that the Cowan form is consistent with it Santerre responded that "we were not asked to do that", which I take to mean that neither she nor anyone else did so. On the evidence, it is hard to believe that Santerre, who conceded in cross-examination that she did not review either HOODIP when she drafted the Cowan form, or anyone else at Cowan paid any attention to the collective agreement. lol:Jf~~ILI:JI:JI loO.~:l 'u bbtlb:l3b3 5URDYKOWSKI PAGE 11 7 14. Santerre also appears not to understand the HOODIP definitions of "total disabiHty" or "totally disabled". Santerre testified that impairment does not equate to total disability and the Cowan materials (specifically Exhibit #20) refer to an employee's inability to perfonn the "essential" duties of her occupation, but both HOODlPs define the eligibility as tbe inability to perform the ''regular'' duties of the employee's occupation. While Santerre's broad general statement that a person whose abilities are impaired may not be totally or at all disabled is accurate as far as it goes, her example of someone witb a broken leg stm being able to perform reception work and her assertion that an impainnent does not necessarily mean that bargaining unit nurse cannot perform any of her normal duties demonstrate that Cowan does not appreciate the distinction between essential and regular duties for SID benefits putpOses under the HOODIPs, particularly when it comes to nurses. There .is a difference between essential and regular duties. As a general matter regular duties is a broader category which encompasses but is not limited to essential duties. Nor is it clear that Santerre appreciates that the Hospital is a highly un.ionized environment because even if an ill or injured nurse could be assigned to clerical or non..nursing duties doing so could take her out of the bargaining unit aud conflict with the rights of employees in another bargaining unit. Perhaps this is why the Hospital has effectively retained full control of return to work and accommodation issues. 15. Santerre says that the Cowan fonn is similar to (which I take to mean substantially the same as) forms used by other insurers in.cluding Sun Life, Great~West Life and Manulife use for the same purpose. (I note that a Manulife medical release form is in evidence (as Exhibit #30), but I did not allow the Hospital to adduce examples of Sun Life or Great-West Life forms because they had not been produced in accordance with my production orders. In any event, the mere fact that an industry nonn has developed does not necessarily mean that the practice is acceptable.) Santerre identified three uses for tile information obtained from the Cowan fonn: to detennine the applicant employee's eligibility for ST.D benefits, to ensure that the employee receives proper treatment, and to identify a return to work date and options. She testified that Cowan uses the applicable HOODIP parameters to assess an employee's eligibility for SID benefits. It appears from her testimony that her focus .io. that respect was on the 1992 HOODIP, which is quite different from the 1980 .J-IOODIP that applies to many of the bargaining unit nurses (see paragraphs 52 and 56-62, below). loU{U~{LUUI loo;~~ "IloOtlbtl"::l-:lb-:l ~UI'<::VYKUW5KI PAGE 12 8 16. The Union does not o~ject to the personal infonnation sought in Section A of the Cowan form. Section B is the consent to release infotm.ation part of the fonn. TIle Hospital's Attendance Awareness Program document (Exhibit #41) speaks In term.s of employees providing "appropriate" consents to the release of medical information sufficient to allow the Hospital to fulfill its responsibilities. Santerre testified that the purpose of Section B is to infonn the employee of the information that .is being requested and that more may be requested, of what Cowan will be doing with the information, and to preserve the confidentiality of the information. She explained that Cowan only wants infonnation that is "relative" to the absence in issue, that Cowan seeks ~'restrictions or limitations" infonnaHon for return to work purposes, notwithstanding that she is aware that the Hospital has a separate return. to work informa.tion form (i.e. the F AF) and process. Santerre says that Cowan seeks a release for "WSffi" infonnation so that it can coordinate return to work e.fforts with that agency, and for an "Automobile insurer" [sic) because such an insurer is the "first payer'~ if a claim arises out of a motor vehicle accident. She says that return to work information may be shared with supervisors, and "when applicable" the WSIB, an automobile insurer and the long-term disability insurer. Finally, Cowan decided to include the reference to maximum reimbursement of$35.00 for completing the form, which Santerre says is in accordance with OMA and CMA guidelines, so that the doctor will know that he will be reimbursed in that amount and be aware that the employee will be responsible for any amount in excess of tha.t. This is an.other illustration of Cowan's failure to review the collective agreement and ensure that the Cowan form complies with it. Article 12.14 of the Central portion of the agreement clearly specifies that the Hospital is responsible for the full cost of any medical certificate that is required of an employee. 17. With respect to Section C, Santerre testified that requests for diagnoses are "nonnal in the field". Although she agreed in cross-examination that Cowan doesn't necessarily need to have diagnosis, treatment or medication infonnation to verify SID benefits eligibility and that an employer only needs to know an employee's functional limitations, not the diagnosis (which she says is not communicated to the Hospital in any event), Santerre nevertheless maintained that Cowan requires the primary diagnosis and symptoms in order to perform its adjudication function. She says the primary diagnosis and symptoms reveal the nature of the illness andpennits Cowan ~ViVwi~UU( ~U.~~ "tloOOOO:J.:lO.:l :::'UI'<::VYKUW~Kl PAGE 13 9 to assess the reasonableness of the duration of the absence. It is difficult to reconcile Santerre's assertion that Cowan requires diagnosis and symptoms information to perfonn its adjudicative function and to assess the reasonableness of the duration of the absence with her need to know admissions in cross-examination. Not only did she agree with Union counsel that Cowan doesn)t necessarily require diagnosis, treatment or medication information in order to verify (which I consider indistinguishable from adjudicate) SID benefits eligibility, she frankly acknowledged that an employer does not require diagnosis information. Ifth.e employer) in this case the Hospital, does not require the infonnation, it is not entitled to it unless the collective agreement so provides (an issue that I will return to below). Since a thi.rd party agent like Cowan stands in the shoes of the Hospital neither is it entitled to it Notwithstanding this, Santerre maintained that such information, "current findings" and a prognosis are "useful" for return to work purposes and to assess the appropriateness of the treatment, which Santerre was quick to say was not for the pwpose of questioning the doctor but to permit Cowan to facilitate or make treatment suggestions. Santerre says that Cowan seeks a secondary diagnosis and symptoms because that could be what is preventing the employee from returning to work. In cross-examination, Santerre agreed that the Section C information is unnecessary because of the Hospital's own. .FAF return to work form and process, but she continued to insist that Cowan nevertheless requires that information in order to provide disability management and to facilitate and assist in the employee I s medical treatment. Indeed, Santerre testified in cross-examination that the focus of Section C is on return to work issues, and agreed that the Hospital' s own F AF provides all of the return to work infonnation that an employer needs. It is clear from the evidence that the Hospital maintains complete control over all aspects of the return to work and accommodation process notwithstanding the provisions in. .its contract with Cowan in that respect 18. Santerre explained that the attending physician is in the best position to assess an employee's medical status, and that the physician's role is to diagnose and treat the employee, and provide functional abilities information, but not to determine whether the employee is totally di.sabled for employment and benefits purposes. In cross-examination, SantelTe agreed that the attending physician would be in a better position to do so if slbe were provided with a job deSCription and demands analysis (which the Hospital has for all bargaining unit positions), but she al.50 said that doctors have a Iim.ited amount of time to spend on these issues and often are not used LU/U~/~UU( ~O.~~ 'tloOOOO"::l..:lO..:l :::'UI'<::UYKUW~Kl PAGE 14 10 to or comfortable deaHng with them. Santerre says that Cowan's role is to adjudicate the claim for benefits, to ensure that th.e employee is receiving appropriate treatment, and to discern return to work options. It appears from Santerre's evidence that Cowan is seeking the type and amount of confidential medical information because its view is that a bargaining unit nurse is not totally disabled for SID benefits purposes if she can do tbe essential or perhaps even. any of her normal duties. This is the wrong test under either of the HOODIPs (see paragraph 52; below) fiI. WHAT CONFIDENTIAL MEDICAL ~O:RMATlON CAN AN_ E~LQ~...B REQUIRE General Principles 19. At least two questions typically arise in medical information cases: what is appropriate as a m.atter of general practice and policy, and what is appropriate in a particular case? These grievances directly raise the general practice and policy issue. But they also engage the question of the particular case as the counterpoint. That is, a question that arises is whether the sort of invasive inquiry that may be appropriate in a particular individual case is also appropriate in the first instance in every case. 20. Both subjectively and objectively, personal medical infonnation is confidential personal information. The confidentiality of the doctor/patient relationship and personal medical information is universally and legislatively recognized as one of the most significant privacy rights in modern Canadian society. There appears to be a general societal notion that the right to privacy is a basic human right, particularly in a modern democratic society. But employer and employee rights in that respect do not arise out of the air. It is far from clear that there is a common law right to privacy (althougb there is some American jurisprudence that seems to suggest there is - see~ for example, Holloman v. Lift Ins. Co. o/Virginia, 192 S.C. 454, 7 S.E. 2d 169, 127 A.L.R 110), but I think it unnecessary to digress into that discussion (particularly when the parties did not do so). Although the right to privacy is not a right listed in the Canadian Charter of Rights and Freedoms or the Human Rights Code~ there is privacy protection legislation that addresses and reflects the ~UfU~fLUUI loO;~"::I 'Ilobbtlb"::l-:lb-:l ~UI'<::VYKUW~Kl PAGE 15 11 prevailing societal notions of privacy rights with respect to personal health infonnanon. This legislation "occupies the field" and overtakes any common law notion of a right to privacy. The Personal Health lnformation Protection Act, 2004 (the "PHIP A"; see Appendix "D'\ attached) is a comprehensive piece of health care privacy legislation. The Occupational Health and Safety Act (the "OHSA") contains a medical information privacy provision which prevails over the .PHlP A (section 63(6); see Appendix "E", attached). 21. There is nothing in the mere existence of an employment relationship that gives the c employer any inherent right to compel its employees to compromise their legitimate right to keep personal medical information confidential. An employer only has a right to an employee's confidential medical information to the extent that legislation or a collective agreement or other contract of employment specifically so provides, or that is demonstrably required and permitted by law for the particular purpose. Except where required or permitted by law an employer cannot seek and a doctor cannot give out any patient medical information without the patient's freely given infonned specific authorization and consent. But there are few if any things that are confidenti.aJ for all purposes or in all circumstances and the privacy right that attaches to confidential medical information is not absolute. The dispute between the parties reveals the tension between an employer's right to or legitimate need for information in order to properly manage its business and the workplace, and to meet its statutory and collective agreement obligations, and an employee's right to personal privacy. 22. The law that applies to privacy issues includes the "law" that the parties to a collective agreement of .individual contract of employment create for themselves. Of course this party created law must fit within the mandatory parameters created by legislation. There is some legislation that parties cannot contract out of (the Labour Relations Act. 1995 and the Employment Standards Act, for example), and there is legislation that the parties can contract out of (the Arbitration Act, for example). Parties cannot contract out of the PIDP A or the OHSA. 23. Most modem collective agreements contain sick leave benefit provisions. A fundamental principle that underlies every collective agreement is that bargaining unit employees are under an obligation to regularly attend work as scheduled in accordance with the collective agreement, and lol:J( 1:J~1 LI:JI:J r -~ :)"::1 'IJ.bbtlb:l-:lb-:l 5URDYKOWSKI PAGE 16 12 to provide notice of and a legitimate excuse for absences from work. Employees are entitled to be paid for work pe1formed in accordance witb the collective agreement. In the absence of collective agreement provisions employees are not entitled to be paid if they do not attend work. Employer paid leave benefits, including STD benefits, are all contractual. Paid leaves of absence, whether the absence is due to iJlness or injury, or othervvise are only available to the extent that the collective agreement so provides, and then only on the negotiated terms that the agreement stipulates. 24. The onus is on the employee to establish entitlement to collective agreement paid sick leave benefits. This generally means that the onus is on the employee to establish that an absence is legitimate in the sense that she is genuinely unable to report for work due to iJlness or injury. As a general matter, the employer is entitled to sufficient "proof' of the employee's assertion that shc is unable to attend work due to illness or injury and entitled to benefits. Also as a general matter, even if there are no paid benefits available, or the employee elects to forgo them, the employer is entitled to notice of the fact and expected duration of an absence for the legitimate business purposes of work force management and a.bsenteeism control purposes. Both tbe employee and the employer have a legitimate interest in and an obligation to facilitate as early a return to work as possible, with accommodation as appropriate where reasonably available. The employer also has a legitimate interest in investigating suspicious absences and information provided by an employee in that respect. Of course alJ of this begs the question: what is sufficient "proof' in that respect? What information is the employer entitled to and what infonnation must the employee provide? 25. As a matter of general p.rinciple in that latter respect, what is required is sufficient reliable infonnation to satisfy a reasonable objective employer that the employee was in fact absent from work due to illness or injury, and to any benefits claimed (see, Arbitrator Swan's comments in Rc St. .lean De Brehe~f Hospital and C. U.P.E., Loc. 1101, (1977) 16 L.A.C. (2d) 199 at pp. 204-206). As a general matter, the least intrusive non-punitive interpretive approach that balances the legitimate business interests of the employer and tbe privacy interests of the employee is appropriate. But what the employer is entitled to, and concomitantly what the employee is required to provide, will first and foremost depend on what the collective agreement or legislation provide in that respect. loU/U~/4UUI loO.O:l 'I.lbbtlb:l-:lb-:l ~URDYKOW5KI PAGE 17 13 26. J note that the privacy legislation provision is written to require that (subject to exceptions stipulated) the person concerned is the one who must provide an. appropriate consent to the disclosure of her confidential medical information. This does not necessarily mean that the person concerned is the only one who can consent to the release of confidential personal medical information for the purpose of establishing the bon.a fides of an absence fOnD work or an entitlement to paid benefits in that respect. In this jurisdiction a union which holds bargaining rights for a bargaining unit of employees has tbe exclusive right to represent those employees in all employment related matters. An employee cannot bargain directly with her employer in that respect. Indeed. it is an unfair labour practice for an employer and an employee to bargain directly with respect to any term, condition or other matter related to the employee's employment in the bargaining unit (sections 70 and 73 of the Labour Relations Act, 1995). Accordingly, the Union is entitled to negotiate both collective agreement benefits entitlements and the preconditions to such entitlements, including the infonnation that must be provided in order to obtain a particular benefit. That is, as the exclusive bargaining agent the Union can effectively consent to th.e .relea.se of the confidential personal medical information that is required in order to establish entitlement to an srn benefit payment on behalf of bargaining unit employees (subject of course to a bargaining unit employee declining available sm benefits). 27. The several layers oflegitimate employer interests suggest that there is more than one stage to the process that is engaged when an employee seeks the benefit of the sick leave provisions in a collective agreement. It also suggests that the employer will generally be entitled to less information at the initial stage than at a subsequent stage. The employer's desire for more information, or its genuine concern for an employee's welI-being or desire to assist the employee~ operate to trump the employee's privacy rights. Nor do questions of expediency or efficiency. In the absence of a collective agreement provision or legislation that provides otherwise the employer is entitled to know only that the employee is unable to work because sbe j s ill or injured, the expected return to work date, and what work the employee can or cannot do. A document in which a qualified medical doctor certifies that an employee is away from and unable to work for a specified period due to illness or injury is prima facie proof sufficient to justify the absence. Unless the collective agreement (or less likely, legislation) stipulates otherwise~ it will also be loI:J11:J~/~UU( loO;~"::I '1.lbbtlb:l-:lb-:l 5URDYKOWSKI PAGE 18 14 sufficient to qualify the employee for any applicable sick benefits for that period. To require more invites an unnecessary invasion of the employee's privacy. In order to obtain additional confidential medical information, the employer must demonstrate a lcgitimate need for specific information on an individual case-by-case basis. That is, for sick bencfits purposes an employer has no primafade right to an employee's general medical history, a diagnosis, a treatment plan, or a prognosis other than the expected date that the employee will be able to retum to work with or without restrictions. 28. As a general matter there is nothing to prevent an employer from contracting out the information gathering or assessment of medical information function, as the Hospital has done in this case. But the party to whom the employer has contracted out this function stands in the shoes of the employer and has no greater right to or need for infonnation than the employer has .if It performs the function. itself. And the employer is responsible for the conduct of any third party that performs such a function for it. However, the insertion. of such a third party; which is a stranger to the workplace and beyond the direct reach of the collective agreement, may raise suspicions and increase an employee's reluctance to provide confidential personal medical information. 29. A diagnosis or statement of the nature of an illness is undoubtedly confidential medical information. There is a broad and consistent arbitral and judicial consensus that in the absence of contractual provision binding on the employee an employer has no right to a diagnosis. I agree. The British Columbia jurisprudence draws a distinction between a "diagnosis" and a statement of the "nature of the ilIn.ess". Is there a meaningful distinction between "diagnosis" and "nature of the illness" such that an employer is entitled to the latter in the first instance? 30. Santerre testified that the "primary diagnosis and symptoms" requirement reveals the nature of the illness. That is undoubtedly so, but is the reverse is not necessarily the case. Taber's Cyclopedic Medical Dictionary defines "diagnosis" as "the term denoting the name of the disease or syndromc a person has or is believed to have" based on medical tests or an examination of symptoms. That is~ a diagnosis is a formal statement that specifically identifies a disease or injury based upon an application ofmedicaJ scientific methods. It is a medical conclusion that is the .Ulu~l~uur ~o.~~ LfloOOOO"::l':!O':! ~URDYKOW5KI PAGE 19 15 product of a process of identifying or detennining the nature and cause of an illness or injury from an. examination and evaluation of the patient. There are many kinds of "sy:mptoms" (e.g. objective~ subJective, cardinal and constitutional), but the term generally refers to any perceptible change in the body or its functions which indicates disease or injury. "Nature ofiJIness" is not a medical term. Having an "illness" or "injury" is the state of being sick or injured, as the case may be. In this context "nature" refe.rs to the kind, class or essential qualities of a disease or injury. Accordingly, "nature of the illness" (or injury) suggests a general statement ofa person's illness or injury in plain language without any technical medical details, including diagnosis or symptoms. Although revealing the nature of an illness may suggest the diagnosis, it will not necessarily do so. "Nature of illness" and "diagnosis" are not congruent terms. For example, a statement that a person has a cardiac or abdominal condition or that she has undergone surgery in that respect reveals the essence of the situation without revealing a diagnosis. On.ce again, what information the employer (or its agent) is entitled to in that respect beyond that described in paragraphs 24 and 27, above, is a matter of contract and legislation. 31. The 1980 HOOD IP refers to a proof of disability "such as a doctor's certificate" (see paragraph 52, below). A "certifi.cate~' is a document that testifies to the truth of something. For example, a birth certificate testifi.es to a person's birth name; sex, and the date and location of birth; a marriage certificate testifies to the fact and prima facie legality of a marriage; and so on. A certifi.cate from a qualified medical health professional testifies that s/he has assessed a person as being incapable of working at her occupation due to illness or injury for a specified period and constitutes prima facie proof of those facts. I agree with the thrust of the British Columbia jurisprudence that it is not inordinately invasive for an employer to ask that a medical certificate include the reason for incapacity, which would appropriately consist of a general statement of the nature of the disabling iIJn.ess or injury, without diagnosis or symptoms. It is not unreasonable for an employer to require an employee to prOvide tbe reason for ber absence or claim tor sm benefits, and the mere fact that providing that reason (i.e. the nature of her illness or i~jury) may suggest a diagnosis does not excuse the employee from providing the reason in order to satisfy the onus on her to justify her absence and claim for benefits even in the first instance. .~( v~(~vvr ~U.wJ .....LOOOO::J..:to..:t ::'Ut<VYKUW~Kl PAGE 20 16 32. But in the absence of a statutory or collective agreement requirement, a diagnosis or description of symptoms or treatment goes beyond the certification of illness or incapacity that is legitimately required in the first instance. It is only where the employer has a statutory or collective agreement right to more infonnation, or where the employer has reasonable cause to suspect the genuineness, accuracy or quality of the information provided to substantiate an absence that it is entitled to additional information. For example, if the employer has au objective reason to doubt that the doctor who signed a medical certificate actually saw or made any professional evaluation of the employee or that the doctor was qualified to provide the assessm.ent in the certificate, or suspects that the employee had gone "doctor shopping", or has infonnation that casts doubt on the bona fides of the alleged illness or injury that the employer is entitled to seek additional infonnation that is specific to and reasonably necessary to address its concerns (see, for example, Re York County Hospital and S.E.L 0., Lot.'. 204, (1992) 25 L.A.C. (4th) 189 (Fisher, Chair) at page 193). But these are issues that can arise in individual cases, and is not th.e more general first instance issue before Ole in these policy grievances. 33. The issue in tbis case concerns the extent of the confidential medical. infonnation that the employer can reguire an employee to provide in the first instance. This subsumes the consent issue because the employer cannot require the employee to consent to a release of more confidential personal medical information than it is entitled to for sick leave justification or benefits purposes. The employer can always ask an employee if she is willing to volunteer more information than the employer is actually entitled to, but an employer cannot coerce an employee into '.consenting" to provide broader disclosure, and is not entitled to take disciplinary or other steps againstt or deny sick benefits to, an employee who declines to provide more medical intonnation than the employer is entitled to. An employer cannot require an employee to consent to a release of more confidential medical information than is permitted or required by statute or the collective agreement, and that is demonstrably necessary for the particular purpose. 34. Further, the intensely personal nature of confidential medical infonnation, the individual, societal and institutional interests in preserving the confidentiality of such information, and the protections that have been legislated to protect its privacy and use, suggest a conservative approach. Accordingly, collective agreement provisions that speak to the information that an ~UIU~/LUUI loO.~J 'flotltltlb"::l-:lb-:l 5URDYKOW5KI PAGE 21 17 employee must provide to the employer in order to satisfy the employee's obligation to justify an absence or to obtain SID benefits in that respect should be strictly construed. 35. In the first instance for SID benefits purposes, therefore, in the absence of statutory or collective agreement authorization an employer cann.ot .require an employee to consent to the release of more than certification that she is absent and unable to work because she is ill or injured, the general nature oftbe Ulness or injury, that the employee has and is following a treatment plan (but not the plan itself), the expected return to work date, and what work the employee can or cannot do. Th.e consent must be both focused on the particular purpose and limited to the particular medical professional. A consent that must be provided for the purpose of STD benefits sbould not include return to work accommodation considerations other than whether there are likely to be any restrictions on tbe anticipated return to work date. A "basket" consent that purports to authorize anyone who the employer may ask to release confidential medical infonnation is not appropriate. Nor is it appropriate to require an employee to sign a forward- looking consent that may exclude her from the confidential medical information loop. The overwhelming weight of the arbitral jurisprudence takes a dim view of consents that purport to give an employer prospective permission. particularly where the consent purports to permit the employer to unilaterally (with or without notice to the employee) initiate direct contact with a doctor or other custodian of confidential medical information. Every contact should be through or at the very least with the knowledge and consent of the employee. a separate consent should be required for every contact, and every consent should be limited to the completion of the appropriate form or tbe specific infonnation required, as appropriate. 36. In the absence of collective agreement authorization a "one size fits all" medical certificate of disability fonn for sm benefits purposes will necessarily be limited in scope in the first instance. Such a consent should identify the medical professional or custodian of medical information~ specify the period it relates to, and although it can ask, the employer cannot require an employee to consent to a release of the employee's general medical history, a primary or secondary diagnosis, a treatment plan (as distinct from the fact that there is one and that it is being followed), or any medical prognosis other than an expected return to work date. lol:J/~~I~I:J~1 loO.~:l 'Ilbbtlb':t::lbj SURDYKOWSKI PAGE 22 18 37. What an employer can require of an employee should not be mixed into the same form or same section of the form as what it can ask an employee to volunteer. If a single form is used, it must clearly distinguish between what information is required (i.e. what the employer or its agent is entitled to) and what the employee is being asked to volunteer (i.e. what information the employer or its agent would like to have if the employee is willing to allow the employer to access). 38. An assertion or undertaking to treat all medical information received in a bighly confidential manner. and disseminating it solely on a "'need to know" basis, alters none of this. It does not expand an employer's entitlement to information, and really adds nothing to the equation since the employer is under such an obligation in any event. Nor does the fact that an employee has a continuing obligation to account for her absence and the employer has a concomitant right of continuing inquiry in that respect alter the analysis. Th.e nature, extent and frequency of an employer's requests for continuing information, from either the employee or medical professionals must be reasonable in the circumstances (and is an issue addressed in Phase 3 of this proceeding). The fact that a new focused consent is required every time an employer seeks to acquire confidential medical information from someone other than the employee may appear to be inconvenient or inefficient, but convenience or efficacy do not modify an employee's privacy rights. This approach will also both encourage the employer to act reasonably and wl.th due consideration of what it really requires for the particular purpose, and offer some comfort to an employee who may already be feeling vulnerable and exposed. The CUPE Case 39. The text of the Knopf Award in the CUPE case is two single-spaced pages long. It reveals that a mediation/arbitration process was en.gaged to address "numerous" group and policy grievances challenging the Hospital's use of Cowan to adjudicate benefits claims under the CUPE collective agreement, and the Cowan fonn and conduct in that respect. The evidence before Arbitrator Knopf was that Cowan ~ s employees are governed by their professional obligations under the Regulated Health Prqfessionals Act. That is not the case for the all of the Cowan . employees who deal with DNA bargaining unit nurses. The evidence before me is that at least two '"t.L.OOOO::J.,:)O.,:) ::'UKLJYKUW::'Kl PAGE 23 19 of these Cowan employees are not medical health professionals (see paragraph 12, abovc). The Knopf A ward indicates that CUPE raised concerns about the text and content of the Cowan. "Medical Certificate of Disabiliti' (i.e. the Cowan Form). Except for the treatment of the doctor's fee for completing the fonn, these concerns are not specified, and the extent to which the arbitrator considered the concerns to be valid must be gleaned form the amended form that is Appendix "B'; to the Knopf Award. A "Required Accommodation Form" was also in issue in the CUPE case. There is an identical such fotm in evidence before me (Exhibit #24) but the parties paid scant attention to it in the hearing. Their focus was on the Cowan form and the Hospital's own FAF. In any case, it appears that the arbitrator's statement that she was satisfied that the conte.nt and treatment of "this form." comply with all statutory requirements and do not violate the CUPE collective agreement refers to this Required Accommodation Form and not to Cowan form that is the focus of this proceeding. Because she does not provide any basis for her conclusion; I cannot tell from her award whether the arbitrator was "satisfied" on the basis of her independent assessment or because the parties came to an agreement in that respect through the mediation part of the process. Since it is unlikely that a one-day mediation/arbitration process presented a full adjudication opportunity in that respect I think that the latter is more likely the case. For policy and practical reasons labour arbitrators are generally willing accept whatever agreements the parties can come to, and unless there is an obvious legal problem are generally "satisfied" that the parties' agreement is statutory and collective agreement compliant. Further; the excerpts from the CUPE collective agreement that are appended to the Knopf Award reveal that only the 1992 HOODIP applies to the CUPE bargaining unit. There are significant differences between the 1980 and 1992 HOODIPs which are important in the case before me. For aU of these reasons the Knopf Award is of limited assistance. A Reality Check 40. I recognize that the real world is not an ideal one. In the ideal world doctors would have perfect knowledge ofthe relevant m.edical matters, their patients and their patients' workplaces, and would be completely objective. If that were so, a doctor's s.imple statement certifying that an employee was ill and unable to work for some specified period of time; and specifying restrictions for return to work and accommodation purposes when and as appropriate, would be good enough ~U/U~/~UU( ~o.~~ YloOOOO"::l.:lb-:l ~UI'<::VYKOW5KI PAGE 24 20 for all purposes and nothing further, including any diagnoses or even a statement of the nature of the illness or injury would be required. But that is not the real world, or at J.east not the one I am famiUar with. Medical health professionals are also human beings. The fact is that they are n.ot always entirely o~jective. It is quite appropriate f.or medical health professionals to act as advocates for their patients in medical matters within their competence, but n.ot when tbe advocacy extends bey.ond their medical expertise or matters .of which they have direct knowledge, such as when they bave little or no kn.owledge .of tbe workplace .or th.ei.r patient's j.ob or empl.oyment situation other than what their patient decides to tell them. 41. Having said that, this case concerns nurses employed in a hospital setting. As a group, physicians are uniquely situated t.o assess a nurse's ability t.o work in a hospital. A physician is likely to know m.ore about the w.ork that a nurse patient typically performs than he does about the work that other patients are engaged in. A physician is likely t.o know what s.ort .of nurse his patient is and the nature of the w.ork in the department she works in, and is therefore likely t.o be in g.ood position to assess her ability to perf.orm the w.ork of her occupation. 42. Arbitrators who have concluded that particular collective agreements do not require medical diagnoses to be disclosed to the employer have observed that the employer can often guess the diagnosis from the restrictions.or other accomm.odations that are suggested by a doct.or. That is, a diagn.osis can often be discerned even when it is not specifically stated. If S.o, one might well ask: s.o why not provide the diagnosis? And how can one reas.onably object to providing inf.ormati.on which will probably also discl.ose the diagn.osis when that inf.ormation is reasonably required for return to work or accommodation purposes? Is the situation different when an. employee is seeking SID benefits? And if it is, and strict limits are imposed.on the use of the information that must be discl.osed in the first instance for th.ose purposes, what is the likely result? Could limiting an employer's access to confidential medical inf.ormation result in applications f.or sick leave benefits being rejected more .often, perhaps requiring more frequent resort to the expensive and time-c.onsuming grievance arbitration process? If so, b.oW does it serve the employee seeking benefits, the privacy interests of that empl.oyee, the interests .of the parties, or the health system? ~UfU~fLuur ~U.~~ "loOOOO:;l,:lO,:l ~UI'<::UYKUW~Kl PAGE 25 21 43. First of all~ the issue before me concerns the Hospital's entitlement (through its agent Cowan) to confidential medial infonnation in the first instance. The fact that additional infonnation may subsequently be required does not mean that the employer is entitled to it in the first instance. 44. Secon~ it is true that if the matter goes to arbitration, the employee will have to establish that she is (or was) entitled to the benefits. To establish this, it will generally not be good enough to present a doctor's certificate stating only that the employee was disabled and unable to work for a specific or indefinite period. The employer will be entitled to test the claim and the doctor's assertion by questioning the empl.oyee and requiring that the doctor to attend the hearing and give evidence, something that even the most cooperative doctors do not like to do. The employer will be entitled to examine the basis for the simple certificate, which will inevitably include what the doctor did or did to do, hislher knowledge of the patient and the workplace, and what conclusions, including the diaJmosis, and the basis for the conclusions slhe atrived a.t. The employee's personal and medical history will be subject to much more detailed and intense scrotiny at such a hearing, and in a much more public forum, than. is the case in the normal benefits application process. At the end of a lengthy, and for the employee an arduous and often nerve-wracking legal proceeding~ the employee may well be awarded the benefits sought, which benefits may well have been approved many months before in the frrst instance if more information had been provided in the first place. That is, there is a danger that an employee will not receive benefits that she is entitled to in a timely way, when they are most needed. 45. But the real world also includes a society mandated legislated right to privacy, and the fact that narrow disclosure of medical information may have unfortunate or unintended consequences in an individual case, or tbat broad disclosure of medical information may be appropriate or required in preparation for or during a grievance arbitration (or other legal) proceeding does not alter the analysis. Either an employee has privacy rights or she does not. A right that cannot be exercised is no right at all. Although early broad disclosure might prove to have been useful in a particular case, this does not mean that such broad disclosure is necessary or appropriate in the first instance in every case as a matter of general poHcy. There are many business or other matters on both sides of the labour reJati.ons divide that are "confidenti.al" outside of the grievance litigation ~~/Uw{k~UI ~V.w~ ....LOOOO::J.,:lO.,:l :::'Ur<VYKUW~Kl PAGE 25 22 process which are no longer confidential for litigation purposes once tbe grievance arbitration process is invoked. That docs not suggest that they should not remain confidential outside of the litigation process. Indeed, the legislative scheme treats litigation disclosure requirements or obligations as an exception to the general mle of voluntary consent restricted to the purpose disclosure of personal health infonnation. 46. The appropriate requirements and concomitant limitations on the disclosure of confidential medical information is also something that the parties to a collective agreement can address themselves to in bargaining. . In a particular case, the possible consequences of refusing to provide broader disclosure than is technically required in. the first instance is something for the individual employee to weigh, hopefully in consultation with the Union, when she is considering her response to a request for confidential medical infonnation. It is also one of the things that the parties and the employee(s) must consider when they contemplate engaging the grievance litigation process. But the real significance of the real world analysis is that it focuses on individual circumstances and further demonstrates that less disclosure of confidential infonnation is required in the more general first instance inquiry than in an individual case in which questions arise. IV. DECISION 47. Turning to the case at hand, I begin by looking at the legislation and collective agreement. Le~islation 48. The PHWA is a comprehensive piece of health care privacy legislation. It recognizes the confidentiality of personal medical infonnation and, among other things, establishes rules for the collection, use and disclosure of personal health infonnation to protect the confidentiality and privacy of that information. Relevant excerpts from the PHIP A are set out in Appendix '~D". Section 63(6) of the OHSA contains a medical infonnation privacy provision which prevails over the PHIP A (see Appendix ~'E"). I bave already noted that the parties to a collective agreement are bound by and cannot contract out of this legislation. lol:Jl V~1 LI:JI:J { 1.-'::>' ~"::I 4.Lbbtlb:l-:lb-:l ~UI'<::VYKOW5KI PAGE 27 23 49. The legislation reflects the modem approach to the issue and emphasizes the individual employee right to keep confidential medical information private except where it is absolutely necessary to disclose it. The PHIP A makes it clear that the individual's freely given (i.e. uncoerced) express or implied informed consent regarding specific personal health information must be obtained before any such jnformation can be colJected used or disclosed (section 18) and that personal health information shall only be collected, used or disclosed to the extent reasonably necessary to serve the particular purpose (sections 30 and 37). The OHSA, which prevails over the PHIPA, specifies that no employer (or its agents) shall even seek access to a worker's health records except under authority of a court or tribunal of competent jurisdiction or as required by law without the worker's consent (section 63). The Collective AlU'eement 5Q. The collective agreement between the parties in evidence is in two parts: the "Central Agreement", which as its label suggests is negotiated (or arbitrated) centrally between the "Participating Hospitals" as a group and the Union, and the "Local Agreem.ent" negotiated directly between the Hospital and the Unlon. The Central portion of the collective agreement between the parties includes the following sick leave provisions: ARTICLE 12 - SICK LEAVE AND .LONG... TERM DISABILITY (Articles 12.01 to 12.1 I apply to full-time nurses only) ] 2.01 The Hospital will assume total responsibility for providing and funding a short-term sick leave plan at least equivalent to that described in the 1980 Hospitals of Ontario Disability Income .J:>lan brochure. The Hospital wiJI pay 75% ofthe billed premium towards coverage of eligible employees under the long-term disability portion ofthe Plan (HOOOlP or an equivalent plan). The employee will pay the balance of the billed premium through payroll deduction. For the purpose of transfer to the short-term portion of the disability program, employees on the payroll as of the effective date of the transfer with three (3) months or more of service shall be deemed to have three (3) months of service. For the purpose of transfer to the long-term portion of the disability program, employees on the active payroll as ofthe effective date of the transfer with one (I) year or more of service shall be deemed to have one (I) year of service. lo~II:J~ILI:JI:JI loo.8~ 41bbClb'::l::lb::l SURDYKOWSKI PAGE 28 24 12.05 Any dispute which may arise conceming a nurse's entitlement to short-term or long-term benefits under HOODJP or an equivalent plan may be subject to grievance and arbitration under the provisions of this Agreement. The Union agrees that it will encourage a nurse to utilize the carrier's medical appeals process, if any, to resolve disputes. 12.11 A nurse who is absent from work as a result of an j Ilness or inj ury sustained at work and who has been awaiting approval of a claim for Workers' Compensation for a period longer than one complete pay period may apply to the Hospital for payment equivalent to the Jesser of the benefit the nurse would receive from Workers' Compensation if the nurse's claim was approved or the benefit to which the nurse would be entitled under the short-term sick portion of the disability income plan (HOODIP or equivalent plan). Payment will be provided only if the nurse provides evidence of disability satisfactory to the Hospital and a written undertaking sat- isfactory to the Hospital that any payments will be refunded to the Hospital following final determination of the claim by The Workplace Safety and lnsurance Board. If the claim for Workers' Compensation is not approved; the monies paid as an advance will be applied towards the benefits to which the nurse would be entitled under the shorHerm portion of the disability income plan. Any payment under this provision will continue for a max.imum of fifteen (15) weeks. (Articles 12.12; 12.13 and 12.14 apply to both full-time and part-time nurses) 12.12 Nurses returning to work from an illness or injury compensable under Workers' Compensation will be alisigned light work 8.5 necessary, if available. 12.14 lfthe Employer requires the employee to obtain a medical certificate, the ~'p-loyer shall pay the full cost of obtainin.R: the certificate. NOTE: This clause shall be interpreted in a manner consistent with the Ontario Human Rights Code, (Emphasis added.) The Local portion of the collective agreement contains tbe foHowing management rights provision: ARTICLE C - MANAGEMENT RIGHTS C- t Except as specifically abridged, delegated, granted or modified by this Agreement, all the rights, powers, and authority of management are retained by the management and remain exclusively and without limitation witbin the rights of management C-2 Without limiting the generality ofthe foregoing, management's rights in.cludc: a) The light to maintain order, discipline and efficiency, and in connection therewith to make, alter and enforce from time to time, reasonable rules and regulations, policies and practices, to be observed by its' employees, and the right to discipline or dismiss employees for just lol:Jl~~/~~~1 loO.~:l 'H bbtlb':J::lb::l SURDYKOWSKI PAGE 29 25 cause. b) The direction of the working forces; the right to plan, direct and control the operation of the Hospital, the right to introduce new and improved methods~ facilities and equipment, the right to determine: the amount of supervision necessary, combining or splitting up departments, work schedules, establishment of standards and quality of care, the determination ofthe extent to which the Hospital will be operated and the increase or decrease in employment. c) The right to select, hire, discipline, dismiss, transfer, assign to shift, promote, demote, classify, lay--off, recall, suspend employees and select employees for positions not covered by this Agreement. d) The sole and exclusive jurisdiction over all operationst buildings, machinery and equipment vested in the Hospital. . C-3 The exercise of any of these right.. will not be inconsistent with the provision of this Agreement. 51. Notwithstanding Article 12.01, it is common ground that the 1980 Hospitals of Ontario Disability Income Plan ("HOODIP") applies to bargaining unit nurses hired before January 1, 2006 and that under the current coUective agreement the 1992 HOODIP applies to bargaining unit nurses hired on or after January 1,2006. There is no suggestion that the HOODIPs do not form part of the coUective agreement between tbe parties. This being a forward-looking policy grievance, it is appropriate to consider the implications of both, notwithstanding that the grievances predate the actual introduction of the 1992 HOODIP. 52. Th.e 1980 HOODIP provides (with emphasis added) that it: ... consists of two periods of benefits, the Sick Pay Bene.fit and the Lo.ng Term Disability Benefit. These cover the periods before and after the payment of disability benefits by the Unemployment Insurance Commission. For the purposes of the Sick Pay Benefit and the Long Tenn Disability Benefit, "total disability" and "totally disabled" 1l1ean, during the first 104 weeks you are absent from work, that you are unable to perfonn the regular duties ~itljn~ to your occupation due to injury or illness and that you are not engaged in any gainful occupation. After 104 weeks, you must be prevented, by injury or illness, from engaging in any gainful occupation for which you are or may become fitted by training; education or experience. REINSTATEMENT OF BENEFIT loU/I:J~lkUUI loO.~:l 41 bbtlb'::l:.:lb:3 SURDYKOWSKI PAGE 30 26 When you return from an absence and work fuJI-time continuously for three weeks, your benefit period of 15 weeks is reinstated in full. If you are absent from work again due to total disability for the same or a related cause or before you have completed three weeks of full-time employmen4 the balance of your original sick pay benefit will apply. However, if your subsequent absence is due to a different illness unrelated to the initial one, the full IS-week benefit period wilt apply evon if the absence due to the second .illness occurs within three weeks following your return to work PROOF OF DISABlLITY Proof of your total disability ID!tisfactory to your employer such as a doctor's cerl;i.fiC4!t~ is required for absences of three days' duration or over, and is subject to a periodic review thereafter. However, such proof may be required at any time in order for you to qualitY for benefits. (Emphasis added.) The 1992 HOODIP contains relevant provisions as follows: Introdudion The Hospitals of Ontario Disability Income Plan ("HOODIP") is comprised of two parts: the short term disability plan (Part A) and the long term disability plan (Part B) ... the Sick Pay benefit (part A), covering the first 15 weeks of Total Disability. The Sick Pay benefit is administered and paid by the Participating Employer. .. Definitions Actively working and Actively at Work mean the perfonnance for a Participating Employer of the regular duties ofilie person's own, occupation for one full working day or shift. This includes vaclrtion days, personal days andlor holidays 88 well as occasional days used for educational purposes or union business, as granted by the Participating Employer. An Employee on extended leave, such as an approved leave of absence, is not considered to be Actively at Work. Total Disability and Totally Disabled means the Member has a medically determinable ph)!sical or mental imp-ainn~t due to injury or illness which prevents her from perfonning the regJ!lar duties of tile occupation in which she participated imm~!iJ!teJy preceding the start Qfthc disability. Entitlement to Benefit loorU~I~1:J1:J1 loo.8:l 'H bbl::jb':l3b3 SURDYKOWSKI PAGE 31 27 A Member is not considered Totally Disabled unless she is under the active. continuq,us and medically appropriate care of a Phvsioian and is followinlLthe treatment pr~sc:ribed by the ,~hYsician for that di.sabHity. A Member is not considered Totally Disabled due to a psychological disorder unless she is under the !!ptive an~lJtinu~us pare of a Physician or other professional ~tisfactory to the ParticiRatinR; Employer and is fQ)lowin,R; the tr:e.atment nrescribed by the Physician or other professional for that disability. Recurrence ofDisabiJity Recurrence If a member returns to work after receiving Sick Pay benefits under this Plan any subsequent period of Total Disability for the same or related cause will be considered as a continuation ohhe previous benefit period, unless the successive periods of Total Disability are separated by a period where the Member;s Actively at Work for: I. three regular work weeks for full-time employee; or 2. aU of the scheduled working days within 21 calendar dsys for a part time employee, in which case her benefit period of 15 regular work weeks will be reinstated in full. (Emphasis added.) 53. The Union acknowledges that in the past individual employees have given the Hospital a broad consent and access to their confidential medical information, and that such broad access may be appropriate in a particular case. Indeed a review of the Attending Physician's Statements that were used by the Hospital's EHS Department pre~Cowan (see Appendix "AA") reveals that they too asked for a primary diagnosis, whether the employee had previously suffered fomt the same or a similar condition, any conditions or secondary diagnosis underlying the current illness, whether the employee bad been hospitalized and when, whether the employee had undergone surgery as welt as the date of the surgery and the name of the surgeon, whether a specialist was involved or had been consulted, and the treatment and dates that it had been provided. That is, the.re are many similarities between the intrusive questions in the EHS form, to which it appears the Union did not loU/I:J~ILI:JI:JI loO.O:l '11bbtJb':J3b3 SURDYKOWSKI PAGE 32 28 object; and those that the Unlon complains about in the Cowan form. However, the consent that was required by EHS Attending Physician's Statements was much narrower than the disputed consent in the Cowan fO.nll.. The consent in the Attending Physician's Statements wa~ .limited to the treating physician (as opposed to '<any party involved in my treatmenf" in the Cowan fonn), and it restricted the information that could be passed through the "Chinese wall" between the Hospital and its EHS Department to a statement indicating whether the employee was unfit for work, fit to work with restrictions or fit for regular work, and the return to work date if known (as opposed to the far broader disclosure and use of information contemplated by the Cowan consent). 55. But none of that is really significant. The fact that the Union did not complain about an EHS form that required similar disclosure or that individual employees bave given broad consent and acoess to their confidential medical records in thc past, with or without the knowledge or participation of the Union is neither here nor there. The personal nature of confidential medical information is such that permission to access it may be revoked at any time, subject to the consequences of doing so. Except where the issue .ls one of interpretation of collective agreement provisions in that respect, the concepts of past practice or estoppel do not apply. That is, the fact that an individual employee or bargaining unit employees as a group have voluntarily permitted an employer broad access to confidential information in the past, or that their union has acquiesced to this, does not mean that either tbe employees or the Union must continue to do so. 56. There are significant relevant differences between the 1980 and 1992 HOODIPs. Under the 1980 HOODIP "totaJ disability" for sm benefit purposes means an inability to perform "the regular duties pertaining to your occupation" because of illness or i~jury and requires proof "satisfactory to your employer sucb as a doctor's certificate". Under the 1992 HOODIP "total disability" for STD benefit purposes means "a medically determinable ... impainnent" because of illness or injury tbat prevents the employee from performing ''the regular duties of the occupation" when the disability began. In order to be entitled to the SID benefit; the employee must be "under the active, continuous and medically appropriate care" of an appropriate medical professional "and is following the treatment prescribed" for the disability. loI:J11:J~I~UUI loO.~:l Qlbbtlb'::J3b3 5URDYKOW5KI PAGE 33 29 57. For SID benefit purposes, "medically detenninable" really means no more than "which has been determined by a medical professional" in order to eliminate any suggestion that an employee's subjective assessment or one by someone other than a medical professional might bc sufficient. J am satisfied that the definition of(1otal disability" (and the concomitant "totally disa.bled") is the substantially same under both HOODIPs; name)y~ an employee's medically confirmed inability to perform the ~ular duties of her occupation due to illness or injury. 58. Under the 1980 HOODIP, all that is required to establish "total disability" for SID benefit purposes is proof "satisfactory to your employer such as a doctor's certificate". "Satisfactory to your employer" does not imply either a subjective test or broad employer discretion with respect to the proof that can be required. The test is one of objective reasonableness. Further, the phrase is modified by "such as a doctor's certificate"; which must be interpreted in light of the significant privacy protections legislated for confidential personal medical infonnation. Accordingly, this provides an example of what is deemed to be objectively reasonable proof for 1980 HOODIP SID purposes: namely, a doctor's certificate or the equivalent, which.l am satisfied means a certificate from a medical health professional qualified to make the m.edical assessment attested to. That is, in the fIrst instance under the 1980 HOODIP, the cmployer is not entitled to more than a certificate from a qualified medical health professional that states that s/he bas assessed the employee as being incapable working at her occupation due to illness or injury for a specified period, the general nature ofthe illness or injury, that the employee is undergoing treatment (without specifying what it is), and the anticipated return to work date. The employer can only obtain additional confidential m.edical infonnation if it has objectively reasonable grounds to doubt the accuracy, truth or adequacy of the certificate. There is nothing in the legislation or the collective agreement (which includes the 1980 HOODIP) which entitles the employer to a diagnosis or recital of symptoms, a medical history, the tests or other investigations performed, the treatment plan, or a prognosis other than the expected return to work date and identifIcation of any accommodation requirements at that time. 59. There are significant differences between the 1980 and 1992 HOODIPs. The 1992 HOODIP requires proof that the employee seeking SID benefits has a medically determinable impairment (i.e. that a medical health professional bas assessed the employee and concluded that lo~II:J~/~1:J1:J1 loO.~:l 41bbl:lb':l;;jb;;j SURDYKOWSKI PAGE 34 30 she is has an injury or illness which medically prevents her fro.m performing the remtlar duties of her own occupation for a specified period) and that she is "under the active, continuous and medically appropriate care" of an appropriate medical professional "and is following the treatment prescribed" tor the disability. Under the 1992 HOODIP fo.r other than a psycholo.gical disorder the employee must be under the care of a physician, not any other kind of medical professional, which suggests that the proof of disability must come from a physician. In the case o.f a psycho.logical disorder the employee m.ust be under the "active and continuo.us care" of a physician or other professional satisfactorY to the employer. That means that in the case of a psychological disorder the employer can choose the physician or other professio.nal who the emplo.yee is assessed and cared for by for SID benefit purposes. The requirement in the 1992 HOODIP that the employee be under "medicalIy appropriate care" and is following the treatment prescribed entitles the employer to proof from the physician or (in the case of a psychological disorder) other professio.nal that the employee i.s under bislher active, continuous and medically appropriate care far the disability. This requires more than a mere attestation to. that effect. After all would any physician or other professio.nal attest that a patient was receiving anything other than medically appropriate care? Under the 1992 HOODIP the employer is entitled to make its own assessment of the medical appropriateness of the care. 60. Accordingly, in the first instance under the 1992 HOODIP tbe emplo.yer is entitled to a statement from a physician, or in the case of a psycho.logical disorder fro.m a physician or other professional satisfactory to the emplo.yer, that states that slhe has assessed the employee as being incapable of perfo.nnmg the regular duties of her o.ccupation due to illness or injury for a specified period, the general nature of the illness or injury, that the employee is under his/her active and continuou.c; care, a description o.fthe treatment plan and an attestatio.n that the employee is follOWing the treatment prescribed, and the anticipated return to work date. 61. .In the first instance under the 1992 HOODIP, the employer is still n.ot entitled to a primary or secondary diagnosis or symptoms, or to particulars o.fthe employee's medical histo.ry, or the tests or other investigations performed, or to. a prognosis other than the expected return to work date and identification of any accommodatio.n requirements at that time. The employer can o.nly obtain confidential medical information in excess of the broader medical statement it is initially lo~II:J~I~UUI loo~59 4155859353 SURDYKOWSKI PAGE 35 31 entitled to under the 1992 HOODJP if it has an objectively reasonable basis for doubting the accuracy or truth of the information provided in the ftrst instance. 62. The employer is entitled to more confidential personal medical information under the 1992 HOODIP than under the 1980 HOODIP but in the first instance in both cases the employer is not entitled to more than the medically appropriate attestation as aforesaid unless it has an objectively reasonable basis for doubting the accuracy or truth of the information provided. In tbe first instance an employer is not entitled to require an employee seeking STD benefits under either HOODIP to consent to the relea..qe of more medical information than it is entitled to. Conclusion 63. I am satisfied that the Section B - Consent Information of the Cowan form overreaches. First, the consent should be limited to the treating physician (or other professional in the case of a psychological disorder under the 1992 HOODIP). If there is more than one medical or other professional involved a separate consent is required for each. Second, there is no primafacie basis for including any reference to an automobile insurer, which is likely to provide only second hand information if the employee's disability arose out of a motor vehicJe accident with respect to which an insurance claim was made. There is no basis for including any reference to the WSIB which operates under a separate statutory insurance scheme for workplace injuries; and which provides its own disclosure (including fonns to be completed by the accident employer and the treating medical professionals), adjudication and retum to work process. Neither an employer nor any agent of the employer can pUlport to "adjudicate" a WSIB claim. If the WSlB process is engaged and Cowan's assistance is required that is a separate matter and is prIma fade not part of the STn benefits claim process. Third, neither the Hospital nor Cowan can seek access to "all information and documents requested concerning [the employee's] medical condition relative to this claim for the purpose offacilitating the delivery oftbe best medical care and assessment of [the employee's] ability to work." It may not be the place of a medical health professional to assess an employee's entitlement to SID benefits under either HOODIP (but see my observation in paragraph 41, above, regarding the likelihood that physicians are likely to be more familiar with the duties and responsibilities of nurses in a hospital environment and able to assess their ability to perform the lo'fJl fJ;.J1 .<:I:JI:J I 'lo 0: 8':1 4155859353 SURDYKOWSKI PAGE 35 32 same, than of other occupations); but bow can it not be the place of the treating physician or other professional who actually examines and treats the employee/patient to assess the employee's ability to work and to dctctmine and facilitate treatment? How can it be the place of someone who may be less qualifi.ed (and who may not even be a medical health professional) and who bas never met the employee or been in the workplace to assess that employee's ability to work - particularly when they could only do so on the basis of the information provided by the very professional who the Hospital and Cowan assert cannot do so? Fourth, an undertaking to hold all medical information obtained confidential is appropriate, but the employee should not at the same time be required to consent to the disclosure of more infonnation than the Hospital is entitled to. Disclosure should be limited to tbat expressly authorized by the employee or as required or permitted by law. Fifth, the employee should never be cut out of the communication loop. Direct contact between the employer (or its third party agent) and the employee's medical caregivers without the employee's knowledge or consent is prohibited. In order to give the employee an opportunity to object, the employee should be advised in advance of any such communication in any event. Sixth, the collective agreement clearly specifies (in Article 12.14 of the Central portion) that the employer shall pay the full cost of obtaining the certificate. It is wrong to imply that the employee may be responsible for any amount in excess of$35.00 (or any other am.ount). There should be no reference to the medical professional's fee, either maximum or othervvise in consent, or indeed anywhere in the Cowan form. Since it is the Hospital, either directly or through its agent Cowan, who is responsible for payment that.matter is best dealt with. as a separate matter directly between (in this case) Cowan and the medical health professional, perhaps in a separate or covering letter. 64. The Union's complaint about the form ofletter (whish J observe refers to only the 1992 HOOOIP - see paragraph 10, above) that is sent to employees along with the Cowan form may be an overreaction, but J appreciate the Union's concern. when the letter is read together, as it must be, with what I have concluded is the overly broad consent in the Cowan fonn. J am satisfied that it is not improper coercion to inform an employee that they may be disqualified form receiving STD benefits if they fail to provide the anoronriate medical or other information that the Hospital and Cowan are entitled to. lo~II:J~I~~1:J1 loO.~~ 41bb!:lb~:;b:; 5URDYKOW5KI PAGE 37 33 65. As for Section C - Medical Information, I suggest that separate forms are required for employees covered under the 1980 HOODIP and those covered under the 1992 HOODIP. 66. In the first instance under the 1980 HOODIP the Hospital and Cowan are only entitled to a certificate from a qualified medical health professional that states that s/he has assessed the employee (including the date(s) of the examination/assessment) a.~ being incapable working at her occupation (which should be specified) due to illness or injury for a specified period, a statement of the general nature of the illness or injury, a statement that the employee is undergoing treatment (without disclosing the treatment or treatment plan), and the expected return to work date and any accommodation requirements likely to be required at that time. 67. In the first instance under the 1992 HOODIP the Hospital and Cowan are only entitled to a statement from a physician, or other professional in the case of a psychological disorder, that states that slhe has assessed the employee (including the date(s) of the examination/assessment) as being incapable of performing the regular duties of her occupation (which occupation should be specified) due to illness or injury for a specified period, a statement of the general nature of the illness or injury, that the employee is under his/her active, continuous and medically appropriate care for the disability, a description of the treatm.ent supplied, the treatment plan and an attestation that the patient is follo~ the treatment prescribed, and the expected return to work date and any accommodati.on requirements likely to be required at that tlln.e. 68. Under both the 1980 and the 1992 HOODIP the Hospital is also entitled to know when the illness began or the accident occurred and when the employee became unable to attend work, and the date of the fIrst medical examination. It might also be useful for the Hospital to know whether the illness or injury is work...related so that the wsm process can be engaged if appropriate. However; J am not sure that is necessary because I expect that nurses know enough about the WSIB process, with or without tbe assistance of the Union, to know when.it is appropriate to engage it. The Hospital is not entitled to the other information sought on the Cowan Fonn "wish list". As the Hospital's agent Cowan is not entitled to diagnoses; symptoms, medical history, the specifics of medical investigation or current findings, treatment or prognosis other than as indicated above. This entire section will therefore have to be significantly revised in accordance lo tJl l:J;Jl LI:JI:J r ---rt:),::l:l 'H bbtlb:l-:lb-:l 5URDYKOWSKI PAGE 38 34 wi.th this Award. In the fIrst instance, the Hospital is not entitled to all of the information on the Cowan form "wi.sh list", 69, The Hospital or its agent Cowan can ask an employee to volunteer additional confidential infonnation, but in the first instance that should be done on a separate form or at least a separate page that makes it clear that the employee is not obliged to make the disclosure and which requires a separate consent for each parcel of confidential personal medical information. (The information requested should not be as a single package because an employee may be willing to disclose some but not other voluntary infonnation.) If the Hospital or Cowan has reasonable cause to doubt the accuracy or bona fides of the information provided in the fIrst instance, or if that information is objectively insufficient for SID benefits purposes in the circumstances of a particular case, they can seek specific broader disclosure. Doing so will engage an individualized process. 70. In tbe result, this part of the grievances must be allowed. Accordingly, (a) I DECLARE THAT the Cowan fonn is improper because it requires employees to consent to a release of private personal medical information in excess of what the Hospital or its third party agent Cowan is entitled to in the fIrst instance for either SID benefits or return to work purposes under either the collective agreement or otherwise. (b) I ORDER THAT use oftbe current Cowan fonn cease forthwith. (c) I ORDER THAT a new form or forms may be constructed for STD benefits purposes, which form ( s) must comply with this Award. (d) I ORDER THAT the Hospital to ensure that its third party agent Cowan complies with this Award. (e) I WILL REMAIN SEIZED for tbe purposes of rectification, and to deal with any issues arising out of the implementation of this A ward. In order to relieve the parties of the time and expense of litigating the propriety of any new Cowan or other fonn that is constructed lo'UI l:J;Jl LUU I 'lo 0: 59 4166869363 SURDYKOWSKI PAGE 39 35 for use in administering the SID benefits under either the 1980 or the 1992 HOODIPs anew or before another arbitrator, J will remain seized to deal with any issues in that respect as welJ. 71. .I recognize that this Award may result in a somewhat cumbersom.e process, but rights are rights and employees who ~eek SID benefIts are just as entitled to stand on their legislated or collective agreement privacy rights as anyone else. DATED AT TORONTO THIS 5TH DAY OF OCTOBER 2007. lol:Jl~fLUI:J/ loo.8"::1 '1.lbbtlb:l-:lb3 5URDYKOWSKI PAGE 41 WhIt --1fMt.... 011 1hIt........_1 WhIt fbncldcM lImftMlou.... yow pIIiwltt. IIWIiIJ to ~ lliIIIheraorM ICltMtJa,IncIIIdlttt \WIt? wa..t inYe:nlptions tums becm doIIe? PleMcllllt IpOCItlc ... bdcnr. lib of RIIUIt$ 4. T......t DateoflMtvlllt: I I Dereofnu;tvtstt: '_'_ oo.n oo*n l~ iheClW'Nlttdledl~ 1IMl..... ~ as well. dIo NIpOIW: fD these ~: 'IbenIpy? _Yes _No JfHf'.t" mdIcate fJ1Je .. O~y <.... pbytItJCh-.py. PIJ~oIIPy) ~ _Ves_No Jf.-y."~ofMg<<y: Date: ~ _..a-...I 1 I ............,.-........... ,.....- SWW AJq oUter CftlIbnent or fUturo ~ Ibr ......1Clftt? SummIlrim pMfont's ...~ to ~ .... yourplCtent been n6rred to.. oda ~I}-~I)? ~ Yea--..--No U-VfJI" ~'. MIlO ftDCIlpfdaIC) n.o(a..~ ~ Day Month V_ . 5. ........18 PIeue ptvfldCl dat8Ib *'-tae...... to WCIIt pi-. ~ Ippf~ time ~ CM" wark OC'-.odfflod wmt; l.medulc). = ~- -:. = ' :"' :: ;. .;... Nodceto Ptv&lul.o: Aff1 .......... pm.tded by 1UU to the Mec1b19cnfce PM~ IDlY be ~.. ClIo.... ~ those auIborIzed by b~ to n::odv~.... dhatoM.. ~"~ n.__L_.J_ un Mh( YY PriIIt -..ntr. Phano G\Imbclr ( ) loU1U~/4UUI loO.o:l 41bbtlb'::l::lb::l 5URDYKOW5KI PAGE 43 Please identify dates of your treatments of the patient for this condition within the past month: To the best of your knowledge,. indicate the datestbat your patient has been totally disabled (unable to work in any capacity): From: _____I ~/_ (yylmmldd) To: _'_'_ (YY/mmldd) Can ttie patient return to usual work now? Yes If no, can be/she return to modified work now? Yes No . ~ No 8) Iryes, what specific .-estrietions(eg. HOUfS, posttu'es,lifting)? b) Ifno. your best estimate ofdateabletorctum? .... When do you plan to see your patient next fur this condition? Other comments Yow: name; Dr. Practice Address: Telephone 1#; Signature: - -Date: _'_' . ". ; (yy/mmldd) Authorization for Release of Infonnation I hereby authorize my treating Physician to Complete this Conn nnd fot: thiS information to be released to my confidential medical file in EmplOYe(: Health Services, Hamilton Health Sciences. I consent for Employee Health Semoes to rel:ease only the following limited infonnation to Hamilton Health Sciences,. based on my Doctor's report. . , , -- . a) Fitness for work. A statement indicating whether I am. unfit for wort<, fit to work with certain _ restrictions or fit for regular work. .' b) Date of expected return to work ifit is known. Hamilf9n Hea1fh Sciences may be notified ifno return to. work date bas been detennined. --~-~-~~------------~-----~- ___...~................--_..--,..~~___.A.flt.....____..........---....-...-_...""'" Date: Patient's Signa!llre: Affiliated with the F<ttulty of[{ealth ScleltC(s, McMasrar (/nivtrs{(y Fpdated No" 2001-hr .1 lo tJf tJ;.)f Ll:JtJ I lo 0; ~"::I ~.Lbbl:lb:l-:lb-:l ~URDYKOW5KI PAGE 45 APPENDIX "C" Healtb and Disability Management Consnlting Services Service Agreement between Cowan Wright Beauchamp Limited 641 Montreal Road Ottawa, ON KlK OT4 100 Regina Street South Suite 270, Box 96 Waterloo, ON N2.J 3Z6 and Hamilton Health Sciences Corporation Sanatorium Road Hamilton, ON L9G 3NS Whereas Hamilton Health Sciences Corporation (HHS) administers and pays full income protection during illness absences ("sick leave") to its eligible employees. And whereas HHS has requested that Cowan Wright Beauchamp Limited (CWB) provide professional sick leave assessment and other analytical services to HHS; Effective January lOtb, 2005, CWB is appointed by HHS to act as HHS's Health and Disability Management and third-party administrator to provide: · Sick Leave A4i!I~cation and Medical Case Management for all sick or injured employees ofHHS during the Sick Leave and Employment Insurance (where applicable) period of absence. . Sick Leave Adjudication and Medical Case Management HHS retains CWB to adjudicate sick leave claims teiceived by them and to provide Medical Case Management This service will include validating whether the employee's absen.ce is due to a defined medical restriction, the review of factors relevant to the disability and the regular issuance of Case Management Reports. It may also include confidential and .privileged communication with bealthcare professionals involved and assistance and orientation of the employee with required healthcare services. CWB's health professionals will provide recommendations concerning the eligibility for sick leave payment according to their respective code of ethics and standards of lol:Jl U'-!I .cUU I lo o. !:l'::l 41 bbl:lb':t:3b::l SURDYKOWSKI PAGE 46 practice (The Col1ege of Physicians and Surgeons of Ontario for CWB Medical Director, The Ontario College of Nurses for CWB Occupational Health Nurses and/or any other professional accreditation). The final decision regarding pavment of sick leave benefits is ultimatelv HHS's resoonsibility. HHS is responsible for providing the pertinent information to CWB in order to determine participant eligibility in accordance with the employer's poUcies and practices for sick leave benefits. CWB will rely upon the information provided by the employer concerning participant eligibility for its a4iudication. HHS will communicate in a time] y fashion all the necessary information related to the absence of an employee which may result from a medical condition. CWB will nrovide standatd room to IrnS to facilitate the collection of the necessary information from both the employee and HHS. CWB will Drovide orofessional sick leave adiudication and medical case management services to attend to the needs of employees who are away from work for five (5) or more consecutive shifts as a result of a non-occupational disability. CWB' Sick Leave Adjudication and Medical Case Management Service includes: . Decisions regarding the eligibility to sick leave benefit payments; . Communication to HIlS of any issues relevant to the disability that may bIDder recovery; . Communication with the employee as required during the Early Intervention program; . Communication. with healthcare professionals involved, if ~ including payment of any related fees; . Assistance and orientation of the employee to an.y required hea1thcare services; . Monitoring and communication of case progress to all stakeholders; · Early coordination of rehabilitation initiatives to facilitate a timely return to work; · Communication of potential return to work parameters to the employer; . Orgaoization of independent assessments that may be necessary to facIlitate recovery; . Issuance of Case Management reports to the employer as needed and monthly swnmary reports; · Upon our recommendation, it is HHS' responsibility to initIate the L TO claim applications. C\VB will transmit, to the insurer, copies of documents relevant to the L 1D claim, prepared by medical professionals, without prejudicial assessments. Fees and Payment Terms From January 10th, 2005 until February 28th, 2005 the Sick Leave Adjudication and Medical Case Management component will be provided on a. fee-for-service basis based on CWB's hourly rates. During this period our services will include continued case management for the current groups and implementation assistance. Starting March 1st, 2005, the above services will be provided on a monthly retainer of loU/I:J~/~1:J1:J1 loo.8~ 41bbl::lb~::Jb::J SURDYKOWSKI PAGE 47 . Fee for services will be reconciled monthly. Fees exceeding the retainer will be reconciled and billed the month following the reconciliation report. Where the retainer exceeds the fees owing, such surplus will remain in the account to be ultimately reconciled the following months. During the first 12 months of service the minimum fee paid to CWB will not be less than _ HHS and CWB agree to a Disability Management - Quality Service Standards model tbat will enhance the results of the program and provide a measurable benefit to HHS. The document win provide the basis of performance management (See attached doclUncnt and Scorecard) (not provided]. CWB hourly rates (excluding GST) are: . . . . (Above fees apply for 24 months. CWB reserves the right, with HHS approval, to increase fees for se:rvices beyond 24 months to a minimum ofCPI.) On-site communication including program launch, information sessions and any additional requests for attendan.ce during the program period, including meetings with Managers and employees will be provjded at a fix rate of _ + GST. HHS and eWB shall identiry funds that may be required to reimburse .referrats or consultations obtained through the Medical Case Management preferred healthcare provider network (fudependent Medical Examinations, Functional Capacities Evaluations or facilitating diagnostic tests such as MRI). HHS will incur costs for these services. Prior to incurt'ing these expenses, eWB will seek pre~authorization from HHS and any resulting payment or reimbursement will be detennined. Termination of Contract Either party may terminate this agreement at any time by providing 60 days written notice. Confidentiality Infonnation referred to in the Agreement, and any other confidenti.al personal or medical information disclosed: (i) by HHS or, (ii) by or on behalf of employees of HHS; to CWB for purposes of enabling CWB to provide the selVices under this Agreement, is referred to, collectively, as the "submitted information". The submitted information by HHS to eWB shall only be used to provide the services loI:J1U~/~UU/ loo.8~ 41bbl::l59353 SURDYKOWSKI PAGE 48 mentioned above. CWB will fully maintain, respect and protect the confidentiality of the medical and personal information received under this agreement and will not release it to any other party, unless such release is authorized by the employee and Complies with all privacy law requirements. CWB may utilize such infonnation for the preparation ofJndepcndent Medical Examinations or Functional Capacities Evaluations. CWB's healthcare orofessionats are o~ratin9: under the confidentiality guidelines of their resoective professional colleges. eWB will ensure safekeeping of allllllS employees' Medical Records incurred for the purpose of the above mentioned services for a period of 10 years, after which the files will be destroyed. General This Agreement is a contract made under and will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Can.ada applicable in the Province of Ontario. This Agreement may be amended upon written consent of both parties. J. Uf U:.Jf '::'l:!1:J ( lo O~ ~"::I 'H bbtlb:l-:lb-:l 5URDYKOl..oJSKI PAGE 49 APPENDIX "D" EXCERPTS FROM THE PERSONAL HEALTH INFORMATION PROTECTION AC~ 2004 PART III CONSENT CONCERNING PERSONAL REALTII INFORMATION GENERAL Elements of consent 18. (1) If this Act or any other Act requires the consent of an individual for the collection, use or disclosure of personal health information by a health information custodian, the consent, (a) must be a consent of the individual; (b) must be knowledgeable; (c) m,ust relate to the infonnation; and (d) must not be obtained through deception or coercion. Implied consent ill Subject to subsection (3), a consent to the collection, use or disclosure of personal health information about an individual may be express or implied. Exception ill A consent to the disclosure of personal health information about an individual must be express, and not implied, if, (a) a health infoMnation custodian makes the disclosure to a person that Is not a health information custodian; or (b) a health information custodian makes the disclosure to another health information custodian and the disclosure is not for the purposes of providing health care or assisting in providing health care. Same L41 Subsection (3) does not apply to, (a) a disclosure pursuant to an implied consent described in subsection 20 (4); (b) a disclosure pursuant to clause 32 (1) (b); or (c) a prescribed type of disclosure that does not include information about an individual's state of health. lo~II:J~141:J1:J1 loO.~:l 'Hbbtlb:l-:lb-:l ~UI'<::VYKOW5KI PAGE 50 Knowledgeable consent ill A consent to the collection~ use or disclosure of personal health information about an individual is knowledgeable if it is reasonable in the circumstances to believe tbat the individual knows~ (a) the purposes of the collection, use or disclosure, as the case may be; and (b) that the individual may give or withhold consent. Notice of purposes (Q) Unless it is not reasonable in the circumstances, it is reasonable to believe that an individual ko.ows the purposes of the collection. use or disclosure of personal health information about the individual by a health information custodian if the custodian posts or makes readily available a notice describing the purposes where it is likely to come to the individual's attention or provides the individual with such a notice. Transition m A consent that an individual gives. before the day th.at subsection (1) comes into force, to a collection, use or disclosure of infonnation that is personal health information is a valid consent if it meets the requirements of thi s Act for consent PART IV COLLECTION, USE AND DISCWSURE OF PERSONAL HEALTH INFORMATION GENERAL LIMIT A nONS AND REQUIREMENTS Requirement for consent 12:. A health information custodian shall not collect, use or disclose personal health information about an individual unless, (a) it has the individuaPs consent under this Act and the collection, use or disclosure, as the case may be, to the best of the custodian' s knowledge, is necessary for a lawful purpose; or (b) the collection, use or disclosure, as the case may be, is permitted or required by this Act. Other information 30. (1) A health information custodian shall not collect, use or disclose persona.l bealth information if other infonnation will serve the pwpose of the collection, use or disclosure. lo'l:Jl tJ;J1 .<:.tJl:J I '.i o~ 59 4155859353 SURDYKOWSKI PAGE 51 Extent of information ill A health information custodian shall not collect, use or disclose more personal health information than is reasonably nece~ to meet the--.numose of the collection, use or disclosure, as the case may be. Exception ill This section does not apply to personal health information that a health information custodian is required by law to collect. use or disclose. Use and disclosure of personal health information 31. (l) A health information. custodian that collects personal health information in contravention of this Act shall not use it or disclose it unless required by law to do so. m REPEALED: 2004, c. 3, Schoo. A, s. 31 (4). ill REPEAI.,ED: 2004, c. 3, Sched. A, s. 31 (4). ill SPENT: 2004, c. 3, Schoo. A, s. 31 (4). USE Permitted use 37. (1) A health information custodian. may use personal health information about an individual, (a) for the D~ose for which the information was collected or created and for all tbe functions ~asonablx necessary for carrving out that pmpose, but not if the infonnation was collected with the consent of the individual or under clause 36 (1) (b) and the individual expressly instructs otherwise; (b) for a purpose for which this Act, another Act or ao Act of Canada permits or requires a person to di.sclose it to the custodian; ( c) for planning or delivering programs or services that tbe custodian provides or that the custodian funds in whole or in part, allocating resources to any of them, evaluating or monitoring any of them or detecting, monitoring or preventing fraud or any unauthorized receipt of services or benefits related to any of them; (d) for the purpose of risk management, error management or for the purpose of activities to improve or maintain the quality of care or to improve or maintain the quality of any related programs or services of the custodian; (e) for educating agents to provide health care; (0 in a manner consistent with Part TI, for the purpose of disposing of the info.nnation or modifying the infonnation in order to conceal the identity of the individual; lo'l:Jl tJ;J1 .<:.tJtJ I 'lo 0: 5'3 4166869363 SURDYKOWSKI PAGE 52 (g) for the purpose of seeking the individuaJ' s consent, or the consent of the individual's substitute decision-maker, when the personal health information used by the custodian for this purpose is limited to the name and contact inform.ation of the individual and the name and contact information of the substitute decision.maker, where applicable; (h) for the oumose of a proceeding or contemolated proceeding in which the custodian or the agent or former agent of the custodian is. or is exvected to be, R Darty or witness. if the information relates to or is a matter in issue in the proceeding or contemnlated proceeding; (i) for the purpose of obtaining payment or processing. monitoring, verifying' or reimbursing claims for paym.ent for the provision of health care or related goods and services; G) for research conducted by the custodian, subject to subsection (3), unless another clause oftb.is subsection applies; or (k) subject to the requirements and restrictions, if any, that are prescribed, if permitted or required by law or by a treaty, agreement or arrangement made under an Act or an. Act of Canada. Agents ill Ifsubsection (1) authorizes a health information custodian. to use personal health information for a purpose, tbe custodian may provide the infonnation to an agent of the custodian who may use it for that purpose on behalf of the custodian.. DISCLOSURE Disclosures for proceedings 41. (1) A health infonnation custodi.an. may disclose personal health information about an individual, (n) subject to the requirements and restrictions, if any, that are prescribed, for the purpose of a proceeding or contemplated proceeding in which the custodian. or the agent or former agent of the custodian is, or is expected to be, a party or witness, if the information relates to or is a matter in issue in the proceeding or contemplated proceeding; (b) to a proposed litigation guardian or legal representative of the individual for the pu.rpose of having the person appointed as such; (c) to a litigation guardian or legal representative who is authorized under the Rules of Civil Procedure, or by a court order, to commence. defend or continue a proceeding on behalf of the individual or to represent the ind.ividual in a proceeding; or (d) for the purpose of complying with, lo~II:J~/LI:J~1 loo.b~ 4155859353 SURDYKOWSKI PAGE 53 (i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, or (ii) a procedural rule that relates to the production of information in a proceeding. Disclo!ilure by agent or fonner agent Gl An agent or former agent who receives personal health information under subsection (1) or under subsection 37 (2) for purposes of a proceeding or contemplated proceeding may disclose the infonnation to the agent's or fonner agent's professional advisor for the p11fJX>se of providing advice or representation to the agent or fonner agent, if the advisor is under a professional duty of confidentiality . (Emphasis added.) lo~II:J~(~I:J~1 loo:b~ 41bb8b9353 5URDYKOWSKI PAGE 54 APPENDIX "E" Section 63 of the Occupational Health and Safety Act PART VIII ENFORCEMENT Information confidential 63. (1) Except for the purposes of this Act and the regulations or as required by law, (f) no person shall disclose any information obtained in any medical examination, test or :x:~ray of a worker made or taken under this Act except in a form calculated to prevent the information from being identified with a particular person or case. Employer access to health records (2) No employer shall seek to gain access. except by an order of the court or other tribunal or in order to comply with another statute. to a health record concerning a worker without the worker's written consent. Power of Director to disclose ii! A Director may communicate or allow to be communicated or disclosed information, material, statements or the result of a test acquired, furnished, obtained, made or received under this Act or the regulations. Medical emergencies ill Subsection (1) does not apply so as to prevent any person from providing any infoMn.ation in the possession of the person, including confidential business information, in a medical emergency for the purpose of diagnosis or treatment. Conflict fill This section prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004. (Emphasis added.)