Employee Privacy, on and Off the Job, in an Era of Technology

At the past OBA Institute this week, the Labour & Employment and Privacy & Access to Information sections conducted a joint session on employee privacy, one of the most rapidly expanding and pressing areas of the intersection of both these areas if practice.

Daniel Wong of Osler, Hoskins & Harcourt LLP looked at the statutory leaves of absences under the ESA, and the basis for which employers can request information for these leaves. Although these unpaid leaves are guaranteed by statute, an employer may still require documentary evidence substantiating these leaves. Problems arise though where an employer requests additional information beyond what they are entitled to.

Pregnancy leave, under ss. 46-47 of the Act, requires notice at least 2 weeks notice prior to the leave beginning. However, these sections also allow an employer to obtain a certificate from a medical practitioner about when the due date is, and if there are any complications from the pregnancy or birth, a certificate relating to the situation and how it affects the employee’s ability to perform job duties may also be obtained.

Similarly, for family medical leaves under s. 49.1 of the Act, family caregiver leave, or critically ill child care leave, a certificate can be requested indicating that the family member has a serious medical condition justifying the employee’s absence. Where the leave is for the purposes of providing care, an employee must provide a written plan indicating the weeks when the leave will be taken.

The exchange of information is also something which underlies the shared responsibility found in the accommodation process for disabilities and the duty to accommodate. The OHRC Policy on this emphasizes dignity as an underlying priority, but also states,

The duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities of which they are unaware. However, some individuals may be unable to disclose or communicate their needs because of the nature of their disability. In such circumstances, employers should attempt to assist a person who is clearly unwell or perceived to have a disability, by offering assistance and accommodation. On the other hand, employers are not expected to diagnose illness or “second-guess” the health status of an employee.

The situation for mental health accommodation outside of the employment context has developed in a slightly different manner to align more closely with practices in the employment relationship.

A new documentation guideline to access academic accommodations was recently developed in light of a challenge from a graduate student at York University. These students no longer have to disclose Diagnostic and Statistical Manual (DSM) diagnosis to register for mental health accommodations and supports. Instead the documentation simply confirms there is a diagnosed mental health disability and focus on any restrictions or limitations necessary.

Fazila Nurani of Privatech spoke on creating employee privacy policies. She stated that privacy breaches in the employment context will continue to occur, and there are some arbitrators indicating that the appropriate standard for employees should be zero tolerance. For some seemingly minor violations it may be appropriate to dismiss an employee for breaching privacy policies, even if the breach was a seemingly minor violation.

She pointed to the Centre for Plain Language’s checklist to create a better employee privacy policy. She emphasized that you shouldn’t assume nobody willl read it, because increasingly sophisticated employees may find details and clauses which appear problematic. The importance of plain language is that it helps create goodwill. Clarity provides employees a meaningful opportunity to understand employer expectations. Consent from employees may therefore not be truly informed, and may even undermine the working relationship with employers.

Dean Ardron of Ursel Phillips Fellows Hopkinson LLP covered the employer right to surveillance. The state of the law in this area has “consistently reached irreconcilable and diametrically opposed conclusions.” The two approaches used in Ontario include the relevancy approach and the reasonableness approach.

The relevance approach to video surveillance in the workplace will typically admit these videos as evidence if they are relevant to the proceedings. Arbitrators adopting this approach have expressed reluctance to consider the means through which the evidence was obtained. The statutory authority often relied on in Ontario is s. 48(12)(f) of the Labour
Relations Act, which provides far broader authority to arbitrators for admissibility of evidence. The lack of any historic common law right, or express statutory provisions preventing this, has empowered some employers to obtain video surveillance even in circumstances which might otherwise be unreasonable.

Perhaps in response to the relevance approach, some arbitrators have insisted instead on using a reasonableness test to look at all of the surrounding circumstances. They first ask whether the circumstances reasonably justify the surveillance, and then look at whether the surveillance was carried out in a reasonable manner. Only if both of these steps are met will the surveillance be admitted.

The factors which arbitrators often look at when considering reasonableness include alternatives which may have been available to the employer. They may consider suspicion an employer has and the basis for it, the nature of the potential harm to the employer, the degree of impairment to the working relationship, and level of intrusion involved.

The challenge with the reasonable test is that it presumes there is a limited but implied right to privacy in Ontario. The absence of any definitive authority on this right makes it difficult to uphold uniformly. Arbitrator Kirkwood emphasized the importance of the relationship involved in City of Toronto and Canadian Union of Public
Employees, Local 7911, (2004), 128 L.A.C. (4th) 217,

While there is no statutory right to privacy in the province of Ontario, there is a compelling and influential reason not to rely solely on the test of relevance in admitting evidence, but rather to also take into account the continuous relationship between the employer, the union and its employees, which is based upon trust…

In furthering that trust, and harmonious labour relations, within the context of labour relations and the administration and application of the collective agreement, there is some expectation of an entitlement to privacy by the employee, such that the employee may carry on his or her life outside the watchful eye of the employer.

James Cameron and Dayna Steinfeld of Raven, Cameron, Ballantyne & Yazbeck LLP discussed employee entitlement to privacy outside of the workplace.

Although most employees generally expect their private lives to remain private, there are some times when their conduct does intersect with legitimate interests of the employer. Social media in particular is changing the way that employers perceive off-duty conduct, and is usually brought to the attention of the employer by co-workers.

In Canada Post Corp v CUPW, (2012), 216 LAC (4th) 207, a postal clerk was terminated after 31 years because of the postings on her Facebook. The account in question was public, and there were 50 co-workers connected to the account, which were notable facts here.

With blogs, there is even less of a privacy interest given the public nature if their readership. In Alberta v AUPE, (2008), 174 LAC (4th) 371, a grievor was dismissed due to unflattering comments about co-workers and management. The Board took particular note that no efforts were made to prevent public access, and the posts were made in her name.

Case law on employer monitoring of online activity of employees is more limited, but the new tort of intrusion upon seclusion may potentially be used in this context by an employee against an employer’s activities.

The test used for disciplining off-duty conduct is from Millhaven Fibres Ltd v Atomic Workers Int’l Union, Local 9-670, [1967] OLAA No 4:

(1) the conduct of the grievor harms the Company’s reputation or product;
(2) the grievor’s behaviour renders the employee unable to perform his
duties satisfactorily;
(3) the grievor’s behaviour leads to refusal, reluctance or inability of the
other employees to work with him;
(4) The grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the
Company and its employees;
(5) Places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces

These factors are used on a balancing of interests, with the recognition that employees are owed privacy when not at work. The general trend in recent cases is a growing need to recognize the need to protect employee’s privacy, and an employer will only be justified in interfering with this or implementing discipline where a legitimate business interest is affected.



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