Disclosure of Medical Documents Maintained by Company Doctor
Does your organization have a corporate health department? If so, you might want to track down the recent case of North York General Hospital (March 8, 2004, O.V. Gray)(unfortunately, there is no link to this case).
The medical file maintained by the corporate medical department has been a contentious issue between employees, unions and employers. In North Your Hospital, the employer refused to release to the union a copy of the contents of the health file kept by the occupational health department unless the Hospital was also given access to the file. The Hospital asked for the employees consent, which was refused. The union then filed a couple of grievances.
The board of arbitration held that there was no express statutory or, in this case, collective agreement right of access to the file. The union argued, instead, that the Company's refusal was "discriminatory" under the provision in the collective agreement. The employer had a policy to the effect that they would provide the medical documents to "authorized agencies" with the consent. The union argued that they were an "authorized agency". The majority said that:
While the relationship between an employee and the health care professionals in the Occupational Health Department is not identical to that of patient and physician, the relationships share significant common features.
They went on to state as follows:
Some observations are in order about the rationale that the employer for imposing the condition on the grievor's access to her file [i.e. that it also be provided to the employer]. First, the employer's belief that it should be able to put itself on an 'equal footing' with the union with respect to information about a potential grievance ignores the union's role as representative of the grievor. The union was the grievor's representative in law and in fact, and in that capacity, might acquire information about the grievor to which the employer could not expect to have access merely because the union did. Second, the employer's belief that its position could be justified by reference to arbitrators' preparedness to order production of documents ignores the fact that no grievance had been referred to arbitration [at the time the request for access was made]. Arbitrators determine whether a document is arguably relevant with reference to the issues actually in dispute in an arbitration proceeding. Until a grievance as been referred to arbitration and the issues in dispute have crystallized, it is premature to speak of an entitlement to production based on arguable relevance.
... The mere fact that a party's investigation would likely turn up material producible in the later arbitration of the dispute does not alone warrant the opposite party's having access, simultaneous or otherwise, to everything investigated. That is so no matter how likely or unlikely it may seem that the investigation could turn up material that will not be producible."
So, the employer was not entitled to access, although, in this case, the union was. But, there may be a silver lining for employers. As mentioned, the employer in this case sought consent from the employee to have its occupational health department produce the file to it. This request was refused by the employee. The board said that "the employer could not later be faulted for not acting on information it had not been provided, particularly information it had requested and not been provided." In other words, so the board said, provide the union with access, and argue over the effect, if any, of their delay in producing the file to the employer.
This is a unique case, dependent upon the language of the collective agreement. In addition, there was a healthy dissenting opinion written by the employer nominee to the board of arbitration.