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LIUNA Local 607 v. Aecon Mining Inc.

February 10, 2016

Labour Board finds fitness testing requirements to be a gross invasion of employees’ privacy

Aecon Mining Inc. is a construction company that employs labourers through LIUNA Local 607’s hiring hall. In the fall of 2015, it decided that it would not accept any workers referred through the hiring hall unless they went through fitness testing. The testing was to be performed by a company called SureHire.

Prior to the testing, a worker was required to sign a release and to fill out a medical form. The medical form directed a worker to provide a detailed medical history, including setting out “all CURRENT OR PREVIOUS surgeries, dislocation, fractures/broken bones, sprains/stress or medical conditions that have occurred in” the worker’s lifetime:

There are then sections in the Medical Form to be completed setting out all surgeries, dislocations, fracture/broken bones, strains/ stress, current injuries, xrays/MRIs, arthrograms, CT scans, bone scans etc. that the worker has ever had.  The worker is asked if they “have ever had a worker’s compensation or disability claim”, or a repetitive strain injury claim.  The worker is also asked if they have been to a physiotherapist, chiropractor, had a massage or been in a car accident.  Finally, the worker is asked to report whether they ever have had one or more of a lengthy list of medical conditions including HIV and other infectious diseases, high blood pressure, bowel or stomach problems, diabetes, pneumonia, sleep apnea and cancer.  Female employees are asked if they are pregnant.

Workers were required to consent to disclose all medical history, and to provide their Social Insurance Numbers. The release also provided that the testing itself involved some risk of injury and that a worker was voluntarily assuming that risk. It also stated that the worker understood that “the information collected by SureHire Inc. is “information of a commercial nature” and that it was “not collected pursuant to the Health Information Act.”  [in fact, the relevant statute in Ontario is the Personal Health Information Protection Act].

LIUNA Local 607 refused to allow such testing to occur, and its workers were not accepted by the employer. The union filed a grievance challenging the employer’s right to force workers to meet these requirements in order to work for the employer.

The Ontario Labour Relations Board allowed the grievance. It held that there is nothing inherently wrong with an employer engaging in reasonable and relevant testing of an employee to ensure the employee is able to work safely at a workplace. However, the testing in this case was neither reasonable nor relevant.

There is little doubt that the physical testing at issue measures whether the employee is capable of performing the work.  That being said, much, if not all, of the medical information requested, aside from being a gross invasion of the employee’s privacy, says nothing about the employee’s ability to do the work which the employee may be expected to do in the job.  To give an obvious example, what relevance is it to the worker’s capability of doing the job if the worker had a “stomach problem” 30 years ago?  Much, if not all, of the medical information requested is of similar relevance and it is unreasonable for the employer to require the employee to give it to a third party which, I add, is not a doctor, let alone the employee’s doctor.  The request to provide such medical information constitutes a gross invasion of the employee’s privacy without reasonable or legitimate justification.

The Board also questioned the employer’s motivation for seeking such broad information:

The requirement to provide such information suggests an ulterior and illegal purpose to SureHire’s (and the employer’s) motivation for pre-hiring testing.  It is not too difficult to imagine that the personal medical information could be used to weed out employees, who are otherwise fit to do the work, based on perceived risk factors for future illness, injury or workers compensation claims.  Indeed, it is difficult to imagine collecting the type of information required of the employee in this case, except for that purpose.

Finally, the Board concluded that requiring workers to sign the release in favour of SureHire was not reasonable, since it had not been bargained by the union and the employer.

Lawyers

Lorne Richmond, Joshua Mandryk

Practice Areas

Construction Labour Relations, Labour Law