A recent labor arbitration decision in Canada provides a guide for employers to “get it right” when balancing occupational safety and health obligations against employee privacy rights.
The employer was Rio Tinto at its aluminum smelter in Kitimat, British Columbia. The decision of Arbitrator Stan Lanyon noted that the location constituted a safety-critical environment as there were significant safety hazards inherent in the operation, including thermal stress, mobile equipment hazards (including equipment moving molten metal), air contaminants, and others.
In addition, the original smelter had been replaced with an entirely new smelter employing new technology and processes. It constituted a higher risk environment because there had not yet been time to monitor the level of environmental hazards in all areas.
In this context, the employer had revised its medical evaluation process to include mandatory disclosure and examination components. Every job in the smelter was assessed to identify its safety-critical tasks and safety-critical conditions. Based on job assessments, employees were designated as requiring either a full medical exam annually or a summary health assessment every three years.
The summary health assessment form contained a number of questions designated as mandatory. These required disclosure of significant medical conditions, medications used, use of hearing aids, fitness to wear a respirator, and cardiac/respiratory history. A vision test was also required.
Although employees would not face discipline if they refused to comply with the mandatory requirements, they would not be permitted to continue working at their jobs until they were compliant.
The union representing the employees challenged the program arguing that it was arbitrary and an unreasonable intrusion into employee private information. The employer responded that its policy was necessary to satisfy management’s obligations for employee health and safety.
The arbitrator held that employers cannot rely on management rights to require medical examinations or disclosure of medical information. That authority must be found in legislation or in contract. He concluded that, where an employer has a legitimate business interest in acquiring employee medical information, it still must do so by “the least intrusive means capable of securing whatever information they require.”
Lanyon reviewed workplace safety obligations placed on employers and employees. He focused on occupational health and safety provisions of the British Columbia Workers’ Compensation Act and regulations. These provisions have equivalent counterparts in most Canadian jurisdictions. The legislation imposes a general duty on employers to ensure the health and safety of all workers and requires that they have occupational health and safety policies and programs to further that objective. The Act also imposes obligations on the workers to protect both their own and their coworkers’ health and safety.
The arbitrator noted regulations under the Act that mandate as follows: (1) Workers must disclose any physical or mental impairment that may affect their ability to safely perform assigned work; (2) workers with any such impairment must not be assigned to or engage in activities that may create undue risk to themselves or others; (3) persons impaired by alcohol, drug, or other substances must not enter or remain at any workplace while their ability to work is affected so as to endanger themselves or others; (4) employers must not allow persons impaired by alcohol, drug, or other substances to enter or remain at any workplace while their ability to work is affected so as to endanger themselves or others; and (5) the effects of both prescription and non-prescription drugs must be considered as sources of impairment.
There were further regulations that applied to the smelter mandating workplace monitoring and exposure control plans for noise and air contaminants. Health monitoring and testing were contemplated in these regulations.
The parties’ collective agreement amplified the statutory obligations by stating that those standards were to be treated as minimum standards in the fulfillment of management’s responsibility for employee health and safety.
Against that background, Lanyon concluded as follows regarding the controversial elements of the employer’s health assessment form:
• The employer could require disclosure of any medical conditions that might affect an employee’s ability to safely perform duties;
• The employer could require disclosure of any medications being taken that might affect an employee’s ability to safely perform duties;
• The employer could require employees to disclose use of hearing aids (a particular issue in the smelter where electro-magnetic fields interfere with some hearing aids);
• The employer could require disclosure of whether an employee was fit to wear a respirator and, in addition, was obliged to carry out tests to ensure a proper seal;
• Given hazards in the smelter environment, the employer could require disclosure of respiratory and cardiac conditions and could ask whether or not employees were smokers;
• Mandatory vision testing was justified given workplace hazards such as mobile equipment in most work areas;
• Voluntary questions regarding weight and blood pressure were acceptable;
• A voluntary lung function test was acceptable, and Lanyon suggested that it might appropriately be made mandatory in the smelter environment; and
• Voluntary questions and offering of urinalysis tests to screen for bladder cancer was acceptable.
Finally, the arbitrator considered the conduct of mandatory medical examinations. The requirements for medical examinations were based on risk factors identified in the catalog for all jobs in the smelter. Critically, where the employer had determined that the risk factors mandated a full medical examination, it gave employees the option of having the examination carried out by their own doctor. Lanyon concluded as follows:
… I have concluded that the Employer’s program of mandatory medical examinations, conducted by its own Occupational Health Department, or by an employee’s own Physician, is in furtherance of tracking industrial diseases present at the Kitimat Smelter, such as Bladder and Lung Cancer, or other medical concerns such as cardiac issues, vision and hearing, is reasonable. It is based upon, and forms part of an industrial hygiene program that is designed to prevent occupational accidents, illnesses and injuries at the Smelter. It is evidence based and it is consistent with the overall statutory scheme and the collective agreement.
This case has significant implications for employers in safety-sensitive workplaces in Canada as they attempt to balance their obligations under occupational health and safety legislation and employee privacy rights regarding health information. It remains to be seen whether this arbitrator’s approach will be followed by other adjudicators. We will continue to follow developments in this area and keep you updated.