Privacy Rights

1
Privacy Rights HIV Disclosure in the
WorkplaceAIDS Committee of Durham Social
Determinants of Health Conference 2005

• Ruth Carey, Barrister Solicitor
• Executive Director, HIV AIDS Legal Clinic
  (Ontario)
• April 27, 2005

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Agenda

• Introduction
• The Importance of Protecting Privacy in the
  Context of work for PHAs
• Privacy Legislation Employment - Whos Covered
  by What?
• Workers rights under the federal Personal
  Information and Protection of Electronic
  Documents Act
• Workers rights under the provincial Personal
  Health Information Protection Act
• Common Issues with Disclosure HIV at Work
• HIV as a Barrier to Employment
• Job Applications
• Insurance Forms at Work
• Requesting Accommodation

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(No Transcript)
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Introduction

• Unemployment, underemployment and stressful
  work are associated with poorer health. People
  who have more control over their work
  circumstancesare often healthier and live longer
  than those in more stressfulwork.
• - OACHA, A Proposed HIV/AIDS
• Strategy for Ontario to 2008

5
Introduction

• ...there is often stigma associated with having
  any disease, particularly a life-threatening,
  communicable disease. Since HIV infection is
  often associated with particular sexual and
  drug-related activities, stigmatization of PHAs
  is common. Disclosure can expose PHAs directly or
  indirectly to discrimination or rejection by
  family, friends and community.

6
Introduction

• A recent survey in Canada found that a quarter
  of the respondents had a low level of comfort in
  associating with people with HIV/AIDS and that
  forty percent had only a moderate level of
  comfort

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Introduction

• ...Almost half of the respondents said that
  people with HIV/AIDS should not be allowed to
  serve the public as, for example, dentists or
  cooks

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Introduction

• ...And while over three-quarters of respondents
  do not believe that people infected with HIV
  through sex or drug use have gotten what they
  deserve, one in ten Canadians still hold this
  view.
• EKOS Research Associates, HIV/AIDS An
  Attitudinal Survey

9
Introduction

• The EKOS attitudinal study involved 2004
  interviews with Canadians over 15 years old
  across the country. It is available on-line at
• http//www.phac-aspc.gc.ca/aids-sida/hiv_aids/att
  itudinal_survey/

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Introduction

• So if we want healthy PHAs to stay healthy, they
  need access to employment.
• And they need employment that feels safe.
• Given public attitudes and stigma towards HIV, it
  is important that PHAs be able to control
  knowledge of their HIV status within their
  workplace.

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Privacy Legislation Employment - Whos Covered
by What?

• Quiz Question 1 The federal privacy
  legislation prevents disclosure of an employees
  HIV status by the employer without consent in
  which of the following jobs?
• Bank teller
• Bell employee
• Nurse in a hospital
• All of the above

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Privacy Legislation Employment - Whos Covered
by What?

• Quiz Question 1 The federal privacy
  legislation prevents disclosure of an employees
  HIV status by the employer without consent in
  which of the following jobs?
• Bank teller
• Bell employee
• Nurse in a hospital
• All of the above

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Privacy Legislation Employment - Whos Covered
by What?

• The federal privacy legislation, the Personal
  Information Protection and Electronic Documents
  Act PIPEDA, only applies to employee
  information where the employer is a federally
  regulated business.

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PIPEDA

• This continued to be true even after January 2004
  when PIPEDA was extended to regulate provincial
  businesses in provinces that do not have
  substantially similar legislation.
• Employee records in provincially regulated
  industries are not covered by PIPEDA.

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PIPEDA

• Examples of federally regulated industries
  covered by PIPEDA include
• Telecommunications and Broadcasting
• Interprovincial or international trucking,
  shipping, railways, or other transportation
• Aviation

• Banking
• Nuclear energy
• Activities related to maritime navigation and
  shipping
• Businesses in Yukon, Nunavut, and the Territories
  (where all private sector activity is in federal
  jurisdiction), and
• Federal Crown corporations bound by order under
  the Act.

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PIPEDA

• So lets say youre an inter-provincial truck
  driver, which means youre covered by PIPEDA...
• What rights do you have with respect to your
  information?

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PIPEDA

• Like most legislation dealing with this topic,
  PIPEDA isnt just about disclosure and privacy.
  Its also about
• limits on collection of information
• the storage of information
• the use of your information
• correction of errors
• your rights of access, and
• the destruction of your records

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PIPEDA

• Quiz Question 2 The trucking company you work
  for requires employees applying for LTD to send
  their application for LTD, including medical
  information, directly to the employer for
  processing rather than to the insurer. Is this
  contrary to PIPEDA?
• Yes, this is contrary to PIPEDA
• No, it is not

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PIPEDA

• Quiz Question 2 The trucking company you work
  for requires employees applying for LTD to send
  their application for LTD, including medical
  information, directly to the employer for
  processing rather than to the insurer. Is this
  contrary to PIPEDA?
• Yes, this is contrary to PIPEDA
• No, it is not

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PIPEDA

• Section 5(3) states that an organization may
  collect personal information only for purposes
  that a reasonable person would consider
  appropriate in the circumstances. (See case
  summary 226.)

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PIPEDA

• Quiz Question 3 When you cannot work because
  you are sick, the trucking company says you have
  to fax a doctors note to the dispatching office
  right away, and that the note must state whats
  wrong with you. Which is true?
• This is okay under PIPEDA
• This is not okay under PIPEDA

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PIPEDA

• Quiz Question 3 When you cannot work because
  you are sick, the trucking company says you have
  to fax a doctors note to the dispatching office
  right away, and that the note must state whats
  wrong with you. Which is true?
• This is okay under PIPEDA
• This is not okay under PIPEDA

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PIPEDA

• In PIPEDA Case 226 the Privacy Commissioner
  ruled that
• it is not appropriate for a company to make a
  practice of receiving employee medical reports by
  fax, and
• any organization that collects medical diagnoses
  about employees for any purpose must only do so
  with strict safeguards in place, that is, shared
  only among qualified medical practitioners

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PIPEDA

• PIPEDA incorporates 10 privacy principles.
• The privacy principles are based on the Canadian
  Standards Associations Model Code for the
  Protection of Personal Information, recognised as
  a national standard in 1996.

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PIPEDA

• Principle 1 Accountability An organisation is
  responsible for personal information under its
  control and shall designate an individual or
  individuals who are accountable for the
  organisation's compliance with the principles.

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PIPEDA

• Principle 2 Identifying Purposes The purposes
  for which personal information is collected shall
  be identified by the organisation at or before
  the time the information is collected.

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PIPEDA

• Principle 3 Consent The knowledge and consent
  of the individual are required for the
  collection, use or disclosure of personal
  information, except when inappropriate.

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PIPEDA

• Principle 4 Limiting Collection The
  collection of personal information shall be
  limited to that which is necessary for the
  purposes identified by the organisation.
  Information shall be collected by fair and lawful
  means.

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PIPEDA

• Principle 6 Accuracy Personal information
  shall be as accurate, complete, and up-to-date as
  is necessary for the purposes for which it is to
  be used.
• Principle 7 Safeguards Personal information
  shall be protected by security safeguards
  appropriate to the sensitivity of the information.

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PIPEDA

• Principle 8 Openness An organisation shall
  make readily available to individuals specific
  information about its policies and practices
  relating to the management of personal
  information.

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PIPEDA

• Principle 9 Individual Access Upon request,
  an individual shall be informed of the existence,
  use and disclosure of his or her personal
  information and shall be given access to that
  information. An individual shall be able to
  challenge the accuracy and completeness of the
  information and have it amended as appropriate.

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PIPEDA

• Principle 10 Challenging Compliance An
  individual shall be able to address a challenge
  concerning compliance with the above principles
  to the designated individual or individuals for
  the organisation's compliance.

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PIPEDA

• Although PIPEDA provides important protections
  for those employees covered by it, the vast
  majority of employers are not federally
  regulated.
• This means that for most PHAs, PIPEDA does not
  apply.

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Privacy Legislation Employment - Whos Covered
by What?

• Quiz Question 4 So Im a nurse working in a
  hospital. If PIPEDA doesnt protect my employee
  records, there must be a provincial equivalent
  right?
• Yes there is
• No there isnt

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Privacy Legislation Employment - Whos Covered
by What?

• Quiz Question 4 So Im a nurse working in a
  hospital. If PIPEDA doesnt protect my employee
  records, there must be a provincial equivalent
  right?
• Yes there is
• No there isnt

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PHIPA

• Effective November 1, 2004 Ontario has a new
  piece of privacy legislation the Personal Health
  Information Protection Act PHIPA.

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PHIPA

• Despite its name, PHIPA, is not primarily about
  protecting the privacy of health information.
• Rather it is about regulating how the health
  industry collects, uses and discloses patients
  health information.

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PHIPA

• So PHIPA does not apply to employee records
  except in the unusual circumstance where the
  employee record in question was created for the
  purpose of providing health care by a health
  professional AND...

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PHIPA

• Quiz Question 5 So my boss insisted that my
  doctor send him a letter saying I was unable to
  work one day last week. My doctor wrote to him
  directly saying I had been seen in his office
  that day. He set out my symptoms and explained
  why they prevented me from working. My boss then
  called up my father (a friend of his) and
  discussed my symptoms with my dad, because he was
  concerned about me
• continued

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PHIPA

• so are you saying PHIPA doesnt apply to this
  situation?
• Sorry PHIPA doesnt apply here
• PHIPA does apply here

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PHIPA

• so are you saying PHIPA doesnt apply to this
  situation?
• Sorry PHIPA doesnt apply here
• PHIPA does apply here

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PHIPA

• There is one provision in PHIPA (s. 49) that
  applies where the personal health information is
  provided directly by a health information
  custodian (like a doctor) to someone who is not a
  health care provider (like the employer).

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PHIPA

• The general rule is that a recipient of health
  information who gets it directly from the doctor,
  or health information custodian, can only use
  the information for the purpose for which it was
  collected. If the same letter is provided
  directly by the employee to the employer, PHIPA
  does not apply at all.

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HIV as a Barrier to Employment

• Quiz Question 6 There is at least one job in
  Ontario that the law actually states cannot be
  done by a person with AIDS. Is it a
• surgeon
• surgical scrub nurse
• paramedic
• child care provider, or
• nonsense- there is no such job

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HIV as a Barrier to Employment

• Quiz Question 6 There is at least one job in
  Ontario that the law actually states cannot be
  done by a person with AIDS. Is it a
• surgeon
• surgical scrub nurse
• paramedic
• child care provider, or
• nonsense- there is no such job

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HIV as a Barrier to Employment

• The regulations under the Ambulance Act state
  that paramedics must be free from all
  communicable diseases as set out in the
  Ambulance Service Communicable Disease
  Standards, published by the Ministry.

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HIV as a Barrier to Employment

• AIDS is included as a communicable disease that
  a paramedic is not permitted to have.
• As a result, applicants for EMS jobs are
  routinely asked if they are HIV positive.
• No one appears to have challenged this regulation
  under the Human Rights Code or the Charter of
  Rights and Freedoms.

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HIV as a Barrier to Employment

• Quiz Question 7 So an HIV dentist who cuts
  himself and bleeds into an open wound of a
  patient has no obligation to disclose?
• No, he doesnt
• Yes, he does

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HIV as a Barrier to Employment

• Quiz Question 7 So an HIV dentist who cuts
  himself and bleeds into an open wound of a
  patient has no obligation to disclose?
• No, he doesnt
• Yes, he does

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HIV as a Barrier to Employment

• The barrier to employment as a paramedic is
  unusual in the health professions in the context
  of HIV. Being HIV is not a barrier to being a
  nurse, personal care worker, dentist, or doctor
  for example, and there is no legal obligation for
  health care workers to inform their employers
  they are positive.

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HIV as a Barrier to Employment

• The "Proceedings of the Consensus Conference on
  Infected Health Care Workers Risk for
  Transmission of Blood-borne Pathogens are
  available at http//www.phac-aspc.gc.ca/publicat/c
  cdr-rmtc/98vol24/24s4/

• In 1998 there was a national conference organised
  by Health Canada to discuss what to do about
  health care workers infected with HIV, HCV and
  HBV.

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HIV as a Barrier to Employment

• In general, HIV health care workers HCW are
  required to
• consult his/her doctor and professional College
  about transmission risks to patients and to take
  steps to ensure there is no risk to patients
• if an HIV HCW has an accident that exposes a
  patient to the risk of transmission, there is
  probably an obligation to ensure that the patient
  is informed about the risk of transmission and
  given access to appropriate care, testing and
  supports.

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Job Applications
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Job Applications

• Quiz Question 8 So I went for a job interview
  and was told I would have to pass a medical
  before I could be offered the job. This is
  illegal right?
• Yes
• No
• Maybe, depends on the job

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Job Applications

• Quiz Question 8 So I went for a job interview
  and was told I would have to pass a medical
  before I could be offered the job. This is
  illegal right?
• Yes
• No
• Maybe, depends on the job

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Job Applications

• Both the Canadian Human Rights Commission and the
  Ontario Human Rights Commission take the position
  it is potentially discriminatory for employers to
  ask health related questions in job interviews,
  or require medical exams prior to a job offer
  BUT...

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Job Applications

• But if the health question is related to a bona
  fide occupational requirement it is okay to ask.
• So remember the paramedics?

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Insurance Forms at Work

• New employees are often asked to complete forms
  for enrolment into group benefits programs.
• It is increasingly common for these forms to ask
  medical questions.

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Insurance Forms at Work

• Quiz Question 9 But I can return the enrolment
  form directly to the insurance company cant I?
• Maybe
• Yes
• No

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Insurance Forms at Work

• Quiz Question 9 But I can return the enrolment
  form directly to the insurance company cant I?
• Maybe
• Yes
• No

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Insurance Forms at Work

• Benefit enrolment forms usually are returned to
  the employer for processing.
• If the employer has no legitimate need for any of
  the information on the form, then yes, you can
  send it directly to the insurance company.

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Insurance Forms at Work

• Section 25(3)(b) of the Human Rights Code
  provides that group insurance plans for employee
  groups with fewer than 25 members may make
  distinctions based on disability, provided that
  the distinction is reasonable and bona fide and
  made on the ground of a pre- existing handicap.

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Insurance Forms at Work

• In practice, s. 25(3)(b) means that small
  employers, who have difficulty getting group
  insurance when their group has a high claim
  history, can exclude employees with pre-existing
  conditions from the plan if the employer pays to
  the employee the premiums they would have paid
  for that employee if he or she had not been
  excluded.

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Insurance Forms at Work

• This means there may be a bona fide reason for
  the employer to receive the enrolment form to
  figure out whether or not to exclude a PHA from
  the plan.

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Insurance Forms at Work

• The same thing would be true for an employer with
  a self-financed drug plan.
• These disclosure requirements for insurance
  purposes are a barrier to PHAs entering and
  remaining in the workforce.

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Requesting Accommodation

• Accommodation refers to changes made to your
  working conditions that make it possible for you
  to do your job.
• Employers must accommodate disabled workers up to
  the point of undue hardship.

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Requesting Accommodation

• Quiz Question 10 I told my employer I needed
  to switch my hours to accommodate my disability.
  He is demanding to know what my disability is. Do
  I have to tell him?
• Yes
• No
• Maybe

68
Requesting Accommodation

• Quiz Question 10 I told my employer I needed
  to switch my hours to accommodate my disability.
  He is demanding to know what my disability is. Do
  I have to tell him?
• Yes
• No
• Maybe

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Requesting Accommodation

• There is no legal requirement that an individual
  requesting accommodation has to disclose their
  diagnosis.
• Rather, you must provide medical documentation of
  your limitations.

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Employment Records

• Under the Employment Standards Act employee
  records related to things like pay and vacations
  should be destroyed three years after they were
  created.
• But the ESA provisions say noting about medical
  information.

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Employment Records

• Under PIPEDA information is only to be kept for
  as long as is necessary to fulfill the purposes
  for which it was collected.

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Contact Information

• Ruth Carey
• HALCO
• 400 - 65 Wellesley Street E
• Toronto, ON M4Y 1G7
• tel [phone] x 3407
• or 1-888-705-8889
• fax [phone]
• web www.halco.org
• e-mail careyr_at_lao.on.ca