January 1, 1993
20.4.164
A department sought clarification on the interpretation and application of legislation and policy on the rights of the National Joint Occupational Health and Safety Committee (JOSH) to access medical information as part of an investigation.
The JOSH Committee noted that during the past 15 months there have been two workplace incidents requiring investigation and the involvement of the JOSH Committee. In May 1991 the operations were shut down and all employees removed from the worksite due to suspected air contamination. In April 1992, management was advised that a former employee was confirmed as having had tuberculosis. Although not considered to have been highly contagious, tuberculosis testing was suggested as a precautionary measure for those employees who had been in close and prolonged contact with the individual. In both instances, the committee encountered resistance from Health and Welfare Canada and Employer officials when requesting access to specific medical information (i.e. who was the infected employee and where did the employee work, details regarding when the tuberculosis was detected, what type of tuberculosis, specific test results of exposed employees, etc). The committee felt that by not having had the "whole story", their efforts to effectively communicate and reassure the employees at large were hampered.
The JOSH Committee members were not clear and requested clarification on the following questions:
1) When does a medical record become an employer's record and thereby eligible for access by the Committee as per the Canada Labour Code? Also, once a health care professional informs the Department of a health hazard, does that then become a Department record accessible by the JOSH Committee?
2) Given that the credibility of any communication is based on the accuracy and completeness of the information contained therein, how can the JOSH Committee head off rumours and diffuse a potentially explosive situation without all the facts including medical information?
3) How do we reconcile the employees right to know the individual right to medical confidentiality and privacy? What supersedes what and in what circumstances?
4) Is there any legislative authority which binds a JOSH member with equal force as a health care official with regard to the confidentiality of medical information? This would enable health care officials to divulge the information to the Committee member if they were satisfied of the information's sanctity. Section 144(2) prohibits disclosure of confidential information obtained as part of an investigation where a safety officer is present. What is the difference?
The Administrative Committee considered and agreed with the report of the Occupational Safety and Health Committee as follows:
1) A medical record cannot become part of an employer's record and thereby eligible for access by the JOSH Committee as per the Canada Labour Code without the consent of the employee. The same applies when a health care professional informs the Department of a health hazard.
2) The Committee realizes that the confidentiality of information may restrict some actions of the JOSH Committee. However, management is responsible for diffusion of information and staff reassurance. Management is advised by Health and Welfare Canada and confidentiality of personal information of employees is maintained.
3) The information held by Health and Welfare Canada is subject to the Privacy Act. Disclosure of such information cannot be made without consent from the employee. Personal medical information may be disclosed where there is an overriding public interest without revealing the employee's identity. There is no evidence in this instance of an overriding public interest which would justify breaching the privacy of employees.
4) There is no legislative authority which binds a JOSH member with equal force as a health care official with regard to the confidentiality of medical information.