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Privacy Rights

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Title: 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

2
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

3
(No Transcript)
4
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

7
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

8
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/

10
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.

11
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

12
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

13
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.

14
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.

15
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.

16
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?

17
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

18
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

19
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

20
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.)

21
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

22
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

23
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

24
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.

25
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.

26
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.

27
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.

28
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.

29
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.

30
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.

31
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.

32
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.

33
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.

34
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

35
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

36
PHIPA
  • Effective November 1, 2004 Ontario has a new
    piece of privacy legislation the Personal Health
    Information Protection Act PHIPA.

37
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.

38
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...

39
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

40
PHIPA
  • so are you saying PHIPA doesnt apply to this
    situation?
  • Sorry PHIPA doesnt apply here
  • PHIPA does apply here

41
PHIPA
  • so are you saying PHIPA doesnt apply to this
    situation?
  • Sorry PHIPA doesnt apply here
  • PHIPA does apply here

42
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).

43
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.

44
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

45
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

46
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.

47
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.

48
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

49
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

50
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.

51
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.

52
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.

53
Job Applications
54
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

55
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

56
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...

57
Job Applications
  • But if the health question is related to a bona
    fide occupational requirement it is okay to ask.
  • So remember the paramedics?

58
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.

59
Insurance Forms at Work
  • Quiz Question 9 But I can return the enrolment
    form directly to the insurance company cant I?
  • Maybe
  • Yes
  • No

60
Insurance Forms at Work
  • Quiz Question 9 But I can return the enrolment
    form directly to the insurance company cant I?
  • Maybe
  • Yes
  • No

61
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.

62
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.

63
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.

64
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.

65
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.

66
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.

67
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

69
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.

70
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.

71
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.

72
Contact Information
  • Ruth Carey
  • HALCO
  • 400 - 65 Wellesley Street E
  • Toronto, ON M4Y 1G7
  • tel (416) 340-7790 x 3407
  • or 1-888-705-8889
  • fax (416) 340-7248
  • web www.halco.org
  • e-mail careyr_at_lao.on.ca
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