Forced medical examinations; Could Ontario employers follow an emerging American practice?
Christine Davies looks at a disturbing trend in the United States
Some U.S. employers have begun requiring employees to submit to invasive medical testing to determine whether they have chronic conditions or disabilities which could affect their job performance or attendance in the future.
Critics have denounced these practices as coercive, discriminatory and an invasion of privacy. Unsurprisingly, employers have attempted to paint these policies in a more favourable light, presenting them as “incentives” designed to promote and improve employee “wellness”. For instance, CVS Pharmacy recently announced that its 200,000 employees must undergo testing to determine and submit their weight, body fat, glucose levels and other vitals. Employees who refuse will be penalized in the form of increased premiums for their health insurance.
In 2012, the U.S. Court of Appeals for the 11th Circuit considered similar practices involving Broward County and its employees. Broward County imposed mandatory biometric screening, which entailed a “finger stick for glucose and cholesterol,” and an “online Health Risk Assessment questionnaire.” This information was to be used to determine whether employees suffered from asthma, hypertension, diabetes, congestive heart failure, or kidney disease. Employees with these conditions would then be offered coaching on managing their disease.
One of Broward County’s employees, Bradley Seff, commenced a class action alleging these practices violated the Americans with Disabilities Act (“ADA”), which prohibits employers from making inquiries regarding whether an employee is a person with a disability, and prohibits employer imposed medical examinations unless they can be shown to be job-related. The Court of Appeals rejected the class action, finding that the employer’s practices were permitted by the exceptions under the ADA for the administration of bona fide benefit plans.
It does not appear that employers have attempted to introduce similar policies in Ontario. It is possible that this issue has not arisen due to the different healthcare regimes in the two countries. American employers may face more pressure to keep medical benefits costs lower than Canadian employers. However, if an employer in Ontario attempted to impose similar requirements on employees, particularly in a unionized workplace, it might face some legal obstacles.
Ontario labour arbitrators have generally not permitted employers to engage in wide-ranging inquiries into employees’ personal medical information. In the absence of specific collective agreement language to the contrary, arbitrators have restricted employers’ right to medical information to what is reasonable in the circumstances, having regard to employees’ privacy interest in their personal medical information.
So, generally speaking, in the absence of specific collective agreement language, an employer is entitled to sufficient information to be satisfied an employee is fit and safe to be at work. However, it is doubtful an employer would be entitled to know, for example, whether an employee was suffering from diabetes and whether their treatment plan could be improved.
While some arbitrators have endorsed pre-employment screening, they have been much more reluctant to require existing employees to submit to invasive medical questions or examinations. Arbitrators have also approached the issue of what information can be requested from the employer’s group benefits insurer restrictively. It would be very surprising if an Ontario arbitrator were to uphold the kind of practices that are developing in the United States, in which employees are being forced to undergo medical examinations unconnected with their fitness to report to work, the only purpose of which seems to be to push down benefit-related costs. Ontario arbitrators would likely find that employees’ privacy interests outweigh the employer’s interest in achieving lower benefits costs.
In non-unionized workplaces, employees do not have a right to challenge management policies as being unreasonable or contrary to the terms of their employment contracts. In this regard, unionized employees have much greater protection from capricious and unfair decision-making than non-unionized employees. When a non-union employee is faced with a fundamental change to the terms of their employment contract, one of three things can happen, as explained by the Court of Appeal in Wronko v. Western Inventory Service:
- the employee accepts the change
- the employee rejects the change and sues for constructive dismissal, or
- the employee rejects the change and the employer terminates the employee with proper notice, and offers new employment with the varied terms.
There do not appear to be any cases in which an employee has claimed that there was a “fundamental breach” of their employment contract and they were constructively dismissed as a result of the employer having violated their privacy. Such a claim would seem to flow naturally from the courts’ recent jurisprudence emphasizing the right to privacy in the workplace, including in Jones v. Tsige and R. v. Cole.
It is possible that a court might be prepared to find that an employer policy requiring mandatory medical testing would constitute a fundamental change to the employment contract, having regard to the important privacy interests engaged in personal medical information. On the other hand, it is also possible that the court might not regard such a policy as a “fundamental change” to the employment relationship if the only effect of refusing to participate in the testing was a small increase to an employee’s share of the benefit premiums. A court’s approach would likely depend therefore on all of the factual circumstances including the onerousness or invasiveness of the policy and the effects of the policy on the employee.
Unlike the ADA, Ontario’s Human Rights Code contains no specific provisions addressing when employer-imposed medical examinations may be permitted. A policy mandating medical examinations, care or counselling or imposing additional financial premiums or penalties could conceivably result in differential treatment for employees with disabilities. Unlike the ADA, the exemptions under the Code relating to insurance benefits are fairly limited.
Section 22 of the Code allows insurance companies to make distinctions in contracts and services on reasonable and bona fide grounds (such as the practice of charging different premiums for people of different ages), but this section would not likely be relevant to a claim against an employer. Section 25 provides a limited exemption from employment discrimination claims relating to employment benefits. It is a violation of the Code for an employer to to deny employment or make an employment offer conditional because of distinctions in a mandatory benefit plan, but not where a distinction based on disability is reasonable and bona fide based on a pre-existing condition that substantially increases the risk. Section 25 would likely not apply to situations involving existing employees because employment is not being “denied” or made conditional.
Further, unlike the ADA, there is no general “safe harbour” provision under the Code exempting employers from all claims relating to the establishment and administration of a benefits plan. Rather, the Code only provides a limited exemption in situations involving the denial of employment where an employee’s pre-existing condition substantially increases the risk associated with a mandatory benefit plan. The Code would not appear to shield employers from claims by existing employees challenging policies imposing burdens on them relating to their medical conditions. Therefore, an employer seeking to follow the example of American companies could conceivably be at risk of a human rights complaint here, even though such claims have not been successful in the United States.