PIPEDA Case Summary #318

Allegations of an inappropriate disclosure and blood testing

(Principle 4.3 of Schedule 1)

Complaint

A railway employee alleged that his supervisor disclosed his personal information to a union representative without his consent.  He also alleged that, after this putative discussion, his supervisor contacted the company’s medical services provider, and as a result, the complainant was required to provide a blood sample or lose his job.

Summary of Investigation

The complainant, a long-time employee of the company, had been fired as a result of an incident involving alcohol.  The company, however, later offered to reinstate him provided he sign two contracts in which he agreed to a number of conditions, including attending a rehabilitation program for substance abuse disorders.  He signed both documents, and attended an appointment with a company physician who examines employees believed to have substance abuse problems. 

According to the complainant, the physician informed him that it would be pointless to have him submit to drug and alcohol testing as the complainant had just completed treatment for a serious illness, and had a number of drugs in his system as a result.  The complainant completed his medical, and was cleared to return to work.

A few days later, the complainant’s supervisor had a conversation with the complainant’s union representative.  According to the complainant, his supervisor told the union representative that the complainant had been cleared to return to work by the physician and the company’s medical services provider.  The complainant stated that his supervisor asked the union representative whether it was the union’s position that its members refuse to provide blood samples.  Since the company’s position was that providing blood was mandatory for employees such as the complainant (i.e. individuals who had signed employment contracts concerning substance abuse), the supervisor wanted to know how it was possible that the complainant had been cleared to return to work.  According to the complainant, his union representative informed the supervisor that the medical services provider and the physician did not require the complainant to submit to a blood or urine test.

The next day, the complainant was contacted by a nurse, who worked for the company’s medical services provider.  The complainant alleged that she informed him that she had received a call from the company and that he was required to submit to a blood test.  As he needed his job, he provided the samples.  The complainant stated that he did not think that his supervisor had any right discussing his medical situation with his union representative or ordering the medical service provider to make him submit to blood testing.

The supervisor at the centre of the complaint had no recollection of the conversation at issue.  The company stated that supervisors are not aware of the medical testing done on employees, but rather are informed if an employee is fit for duty or not.  The Office spoke to the union representative, who presented a somewhat different version of the conversation.  According to him, the supervisor asked him whether the complainant had taken a blood test, to which the union representative responded in the negative.  The supervisor then asked him if the union was advising the complainant not to provide blood.  The union representative responded that the complainant had been cleared to return to work by the physician and medical services provider.  The union representative further indicated that it was his understanding that the doctor did not think there was any need for a drug test as the complainant had undergone treatment for a medical condition.  According to the union representative, the supervisor only asked questions and it was the union representative who provided the information.

The company stated that the complainant occupied a safety-critical position.  Incumbents in such positions have to meet the requirements, including medical requirements, stated in legislation and decided by the Railway Association of Canada.  An employee who does not meet these conditions would be declared unfit for duty, and violation of some of these conditions would lead to dismissal.  In some cases of dismissal, the employee is given a second chance, on the condition that they sign a contract stating that they agree to total abstinence from consuming alcohol or drugs for period of time, as well as testing to monitor the situation.  If they do not respect the contract, they will be permanently terminated from the company with no recourse.

A term of one of the contracts signed by the complainant states that he agreed to be medically examined, including drug and alcohol testing, prior to returning to work.  It also stated that he agreed to unannounced, random testing for a period of time following the return to work.  The other contract signed by the complainant referred to biological monitoring (though it did not specifically refer to blood testing).

The physician who examined the complainant indicated that he reviewed the contract documentation with the complainant and was of the view that he understood that he would be required to provide blood samples.  The physician recalled the complainant stating that he would be discussing the issue with his union as it had advised him not to give a sample of his blood.

Although it was standard procedure to order a blood test, the physician did not do so, which he admitted was an oversight on his part.  He was later contacted by the nurse for the medical services provider, who asked him to fill out a requisition for a blood test.

The nurse in question stated that, at the time, it was standard practice to have a blood test done on an employee after he or she had signed substance abuse rehabilitation program contract.  When the doctor’s report on the complainant arrived at her office, she noticed that the blood test had not been done and made arrangements to ensure that a sample was taken.

The company subsequently revised its relapse prevention and employment reinstatement contracts to include details about the type of biological monitoring that can be done.

Findings

Issued November 8, 2005

Application: Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use, and disclosure of personal information, except where inappropriate.

In making her determinations, the Assistant Privacy Commissioner deliberated as follows:

• On the matter of the supervisor’s disclosure, the Assistant Commissioner noted that the information provided by the union representative did not support the allegation.  Indeed, on the basis of his comments, it appeared that it was the union representative who had disclosed the complainant’s personal information and not the supervisor.
• She therefore did not find the company in contravention of Principle 4.3, with respect to the disclosure.
• Regarding the collection complaint, the Assistant Commissioner stated that there was no evidence that the requirement for the blood sample was instigated by the supervisor.  The contracts signed by the complainant when he returned to work indicated that testing and biological monitoring were required in order for him to maintain his employment with the company. 
• The nurse indicated that when she received the physician’s report, she noticed that the blood and urine samples had not been taken.  She then contacted the physician and the complainant about the matter. 
• The physician indicated that he reviewed the process that the complainant would undergo beforehand and was of the view that the complainant understood that testing was part of the requirements.
• The Assistant Commissioner therefore determined that the company did not contravene Principle 4.3, with respect to this collection.

Accordingly, she concluded that the complaints were not well-founded.