Privacy Hot Spots: Top recent cases on drug testing, surveillance, medical records, and personal information

Privacy issues permeate the workplace, and often present a clash between employees’ interests in a sphere of privacy and autonomy, and employers’ need for information for legitimate business reasons. This session will bring you up-to-speed on how adjudicators have struck a balance between these interests in the latest cases addressing key workplace privacy matters.

• Medical records and exams: What guidance do recent cases provide on the appropriate scope of requests for employee medical information? What restrictions are imposed on employer rules requiring medical information for the administration of sick leave, attendance management, or short-term or long-term disability programs? When will requests for medical information amount to harassment? When will requests for independent medical examinations (IMEs) be upheld? Is there a general consensus that IMEs should be a “rare” occurrence, and are only to be requested as a “last resort” after other sources of information have been exhausted? What remedies can an employee seek if the employer improperly discloses his or her medical information to people who do not genuinely need access to it?
• Surveillance: What do the latest cases say about employers’ use of video surveillance and other technologies to monitor and manage its employees and premises? What balance are arbitrators and privacy commissioners striking between an employer’s right to manage and control the workplace and employees’ privacy interests? How, if at all, will the scope of employees’ reasonable expectations of privacy be affected by the Supreme Court of Canada’s recent decisions in R. v. Jones and R. v. Marakah, in which the Court recognized the accused’s reasonable expectation of privacy in text messages that police obtained from the recipient of the messages (rather than from the accused who sent the messages)? What recourse/remedies are available to employees who have been subject to improper surveillance?
• Drug and alcohol testing: Following the Alberta Court of Appeal’s September 2017 decision in Suncor, which held that evidence of a general problem with substance abuse in the workplace could justify random drug testing, is it now easier for employers to justify random drug testing? Why did the Alberta courts in Unifor, Local 707A v. Suncor Energy Inc., and the Ontario Superior Court in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission reach opposite conclusions as to whether the harm done to employees by random drug testing is irreparable? What, if anything, do these competing decisions suggest about the development of the law in this area?
• Access to information: What are the implications of the decision in Toronto Star v. AG Ontario, finding that provisions of Ontario’s Freedom of Information and Protection of Privacy Act that delay or block access to adjudicative records produced by administrative tribunals are unconstitutional? What guidance do recent cases provide as to when adjudicators/courts will order disclosure of employee records and information?