Update on
Employer Entitlement to contact the employee's physician
In District
of Kitimat and C.A.W., 74 L.A.C. (4th), 351, Kinzie, an arbitrator makes it
clear that the employer does not have the right to talk directly to the employee’s
physician.
Under the collective agreement in question, the employer
had the right to demand "proof to its satisfaction" that an employee was sick
and unable to work. Pursuant to that provision, the employer produced a
"Physician’s Report form" that included a patient authorization to be
signed by the employee, which read as follows: "I hereby authorize my physician to
release to the [employer] any information they request of this disability." Once the
authorization was signed, the employer phoned up and spoke to employees’ physicians
directly. The Union grieved that the patient authorization was too broadly worded and that
the employer should not be speaking directly to the employee’s doctor. The arbitrator
upheld the grievance.
The arbitrator’s ruling was as follows:
In administering the plan, any Employer is entitled to
be satisfied that an employee claiming sick leave payments under the plan is absent from
work due to one of the disabling conditions defined in the collective agreement, i.e. that
his claim is legitimate.
An employee has a continuing obligation to account for
any absence, including an absence alleged to be due to sickness.
If the employee fails to account for his absence at all,
arbitrators have also recognized an employer’s right to stop the payment of sick
leave benefits.
Finally, an employer may not be satisfied with an
employee’s accounting for his absence in a particular case. In those circumstances,
it may require that more information be provided. Again, arbitrators have recognized an
employer’s right to request such additional information where it has reasonable
grounds for rejecting the accounting provided. However, such additional requests must be
reasonable.
In such cases as these, the central issue is the medical
condition of the employee claiming sick leave benefits. Employers will usually accept the
statement of the "sick" employee or a short physician’s note containing the
statement that the employee is sick or otherwise disabled and cannot work as a result.
Such notes do not generally disclose any confidential information about the
employee’s medical condition. They generally reflect a conclusion only, i.e., that
the employee is sick and cannot work.
However, acting in good faith and on reasonable grounds,
the employer may have concerns regarding the central issue of the grievor’s medical
condition and may request additional information concerning his disability
Direct and unilateral telephone conversations with an
employee’s physician contravene the provisions of the collective agreement and
involve an unreasonable exercise of the Employer’s discretion to require the employee
to account for his absence from work. Such a "private inquiry" may be
efficient, but because it may often result in the disclosure of confidential information
about his medical condition without his knowledge, it does not sufficiently respect the
confidentiality of the physician-patient relationship. Further, any employee would not be
authorizing such a "private inquiry" voluntarily. He is required by the Employer
to do so as a condition to his receiving sick leave payments.
An Employer’s Physician’s Report form is a
legitimate requirement insofar as it authorizes the employee’s physician to release
the medical information contained in the form to the Employer. However, the form should be
redrafted so it does not permit direct personal contact with an employee’s physician.
