Privacy and the Workplace

The importance of privacy has been recognized in Canadian society and courts, and arbitral decisions have repeatedly emphasized that privacy must be protected and respected in the workplace.  The protection of privacy is necessary to maintain the integrity and dignity of an individual in the workplace.  This, however, can also clash with another important value in our workplaces – safety.  Unsafe workplaces threaten the health and life of workers and, accordingly, statutory obligations are imposed on both employers and employees through occupational health and safety legislation.  The goal of occupational health and safety legislation is to maintain safe workplaces and ensure that practices are implemented to support and enhance safety in the workplace. 

The tension between the respect of privacy in the workplace and the occupational safety and health obligations to ensure a safe workplace often clash, at which time courts and arbitrators are required to balance these two competing and important values.  One of the areas where we frequently see that clash is in the utilization of drug and alcohol testing in the workplace.  In the arbitral decision of ATCO and CEWA (Mowat) (2024) L.A.C. (4^th) 5, the arbitrator described the balancing of these two important interests as follows:

Employees do not surrender all their privacy rights when they cross the doorstep of the employer’s premises.  On the other hand, employers are not absolved of their obligation to take reasonable steps to ensure a safe work environment simply because employees’ privacy interests may be impacted.  The tension between the competing values of safety and privacy has resulted in the jurisprudence concerning drug and alcohol testing in which arbitrators and Courts strive to find the proper balance.

The challenge of course, is finding the appropriate balance, particularly in workplaces that are safety sensitive or for workers who are involved in a role where safety is paramount and the potential for injury is high.  The difficulties of respecting and protecting both the safety of workplaces and the privacy of workers was described in the arbitration decision of Hamilton Health Sciences Corp. v. O.NThe ch.A. (2007) 2007 CanLII 73923 as follows:

Both subjectively and objectively, personal medical information is confidential personal information.  The confidentiality of the doctor/patient relationship and personal medical information is universally and legislatively recognized as one of the most significant privacy rights in modern Canadian society.  There appears to be a general societal notion that the right to privacy is a basic human right, particularly in a modern democratic society…

There is nothing in the mere existence of an employment relationship that gives the employer any inherent right to compel its employees to compromise their legitimate right to keep personal medical information confidential.  An employer only has a right to an employee’s confidential medical information to the extent that legislation or a collective agreement or other contract of employment specifically so provides, or that is demonstrably required and permitted by law for the particular purpose.  Except where required or permitted by law, an employer cannot seek, and a doctor cannot give out, any patient medical information without the patient’s freely given informed specific authorization and consent.  But there are few if any things that are confidential for all purposes or in all circumstances and the privacy right that attached to confidential medical information is not absolute.  The dispute between the parties reveals the tension between an employer’s right to or legitimate need for information in order to properly manage its business and the workplace, and to meet its statutory and collective agreement obligations, and an employee’s right to personal privacy.

The challenges for workplaces, and for courts or triers of fact when they are called upon to decide the issue, is how to balance both of these very important rights in the workplace.  How do you ensure that your workers are safe in the workplace while also ensuring that you are not impinging on their right to privacy?  And what happens when employers don’t get it right?  When privacy is breached, whether it is in the workplace or another venue, the court can award damages for the privacy breach.  In awarding damages, the court will consider the following factors:

-the nature, incidence, and occasion of the breach,

-the effect of the breach on the individual’s health, welfare, social, business or financial position,

-the relationship between the parties,

-any distress, annoyance or embarrassment suffered by the plaintiff; and

-the conduct of the parties both before and after the breach of privacy, including any apology or offer of amends.

For employers, the requirement to ensure that they strike the right balance in maintaining the privacy of their employees, even when safety issues are at stake, and especially in circumstances involving things such as drug and alcohol testing, is imposed.  The failure to reach the right balance, can result in a finding of a breach of privacy and awards of damages can follow.