1. Inside
November 2009
Volume 8
Quotable Number 35
The Panel . . . has been unable to find that the employer, Safeway,
had accommodated the complainant to the point of undue hardship.
The provision of unilateral offer, that of the reclassification and pay cut
which fit within the employer’s operational capacity, does not constitute
such an accommodation especially when other more viable options
were not explored. The arguments put forth regarding Union and staff
Editorial
morale concerns were largely based on impressionistic evidence. None
Requesting Employeeof the other factors as suggested in Alberta Dairy Pool were addressed,
Medical Information . . . 274namely, financial cost and interchangeability of the work force and facili-
ties so the Panel has not addressed them.
What Would You
The Panel believes that the Commission’s information sheet entitled Do . . .
Family Status and Marital Status exemplifies what the employer’s respon- . . . with an employee
sibilities are in the event an employee requests a change in shifts who provides
because of family issues and that the employer should accommodate conflicting medical
the request if possible, barring lack of employees, having to hire more information regarding
her absence from thestaff to meet this request, and financial considerations which would
workplace? . . . . . . . . . . . . . 275create an undue hardship on the employer.
Rawleigh v. Canada Safeway Limited, [2009] S2005/02/0372 (Alta. H.R. Case Notes . . . . . . . . . . . . . 276
Panel) at para. 338 and 339.
Did You Know? . . .
. . . that employers are
increasingly faced with
the challenge of
motivating four
generations of
employees? . . . . . . . . . . . . 278
Programs & Initiatives. . 278
Q & A
Can an employer force
its employees to get
the H1N1 influenza
vaccine? . . . . . . . . . . . . . . . . 280
273

2. Focus on Canadian Employment and Equality Rights 274
ground to this case reveals a very common workplace fact
pattern in which employees are absent for medical reasons
EDITORIAL for extended periods of time and announce that they wish
to return to work either on the basis of the existing terms of
employment or on an accommodated basis. In this case,
Requesting Employee Medical Information the grievor was not permitted to return to work without
providing medical information about her mental health
Prepared by Carman Overholt, Q.C. and Matthew and ability to return to work. Throughout her absence, the
Curtis of Fraser Milner Casgrain LLP’s Vancouver’s office. grievor had provided doctors’ notes verifying her absences
© CCH Canadian Limited. due to an illness. As a result of a viral outbreak at the
employer’s facility, the employees were asked to provide a
Recent decisions by an Ontario arbitrator and the B.C. stool sample for testing if they experienced any of the
Human Rights Tribunal provide some useful parameters for symptoms associated with the viral outbreak. The grievor
employers who consider it necessary to request medical informed the employer that she was experiencing some of
information from employees for a range of business rea- the symptoms described by the local public health unit.
sons. Given the sensitivity of personal medical information However, the grievor subsequently refused to provide her
and the prohibition under human rights legislation against employer with the medical information requested on the
altering any term of employment because of a disability, basis that it was confidential.
including a perceived disability, employers can be naturally
reluctant to request personal medical information from In the course of her medical leave, it was discovered
employees. that the grievor had been overpaid wages. After meeting
with the employer to discuss and resolve the overpayment
Arbitrator Randy Levinson in Service Employees Inter- issue, the grievor alleged that she was being harassed. She
national Union, Local 1 v. Sterling Heights Long-Term Care also threatened to contact an ‘‘investigative reporter’’ to
Centre, [2009] O.L.A.A. No. 110 dismissed the grievance of make public the alleged inappropriate conduct of her
an employee in response to a request made by the employer. In light of the grievor’s health care responsibili-
employer for medical information that would demonstrate ties and work with individuals who were frail and vulner-
that she was medically fit to return to work. The back- able and due to her unusual behaviour, the employer
required that the grievor provide it with medical informa-
tion to confirm her mental fitness to perform her duties.
Focus on Canadian Employment &
Equality Rights
The grievor responded to the requests by claiming that
Published monthly by CCH Canadian Limited. For subscription she had been harassed and that she considered herself
information, see your CCH Account Manager or call
terminated from her employment.1-800-268-4522 or (416) 224-2248 (Toronto).
For CCH Canadian Limited
After hearing the evidence, the arbitrator held that the
ADEELA AHMAD, Editor grievor’s conduct raised a legitimate medical concern
(416) 224-2224, ext. 6262
regarding her mental fitness to perform her responsibilities.e-mail: Adeela.Ahmad@wolterskluwer.com
The arbitrator ruled that the grievor was not dismissed andCHERYL FINCH, B.A., LL.B., Director of Editorial
that the employer’s request for medical information wasLegal and Business Markets
(416) 228-6128 reasonable and justified in the circumstances.e-mail: Cheryl.Finch@wolterskluwer.com
JIM ITSOU, B.Com., Marketing Manager
In a very different context, the B.C. Human Rights Tri-(416) 228-6158
e-mail: Jim.Itsou@wolterskluwer.com bunal in Kerr v. Boehringer Ingelheim (Canada) Ltd., [2009]
B.C.H.R.T.D. No. 196 (QL) held that an employer had a posi-Editorial Board
tive legal obligation to request medical information fromKRISTIN TAYLOR, Editor-in-Chief
CHRISTINA HALL an employee who was having difficulty performing her
NAOMI HORROX
duties due to a serious health condition.ANDY PUSHALIK
All of Fraser Milner Casgrain LLP
The complainant, Lynda Kerr, suffered from bilateral
PUBLICATIONS MAIL AGREEMENT NO. 40064546 cataracts which resulted in gradually deteriorating vision. As
RETURN UNDELIVERABLE CANADIAN ADDRESSES TO
a result of this condition, Ms. Kerr went on long-term disa-CIRCULATION DEPT.
330–123 MAIN ST bility leave. Ms. Kerr’s condition did not deteriorate as
TORONTO ON M5W 1A1
quickly as expected. Ms. Kerr was active in the rehabilita-email circdept@publisher.com
tion process arranged by her insurance carrier and she
sought to return to her employment duties, including the© 2009, CCH Canadian Limited
90 Sheppard Ave. East, Suite 300 operation of a motor vehicle. Despite Ms. Kerr’s repeatedToronto, Ontario M2N 6X1
attempts to return to work, her employer did not assist her
in doing so.

3. Focus on Canadian Employment and Equality Rights275
Ultimately, the insurance carrier terminated Ms. Kerr’s circumstances but also, the obligation of employers to
long-term disability benefits on the basis that she was proactively request personal medical information where
capable of working. Ms. Kerr did not receive a response accommodation is necessary. Given the sensitivity of per-
from her employer regarding any plan to return to work or sonal medical information, employers must take steps to
terms under which she would be permitted to return to safeguard the information and prevent it from being used
her employment. Without any income and a response for improper purposes. The case law also supports
from her employer, Ms. Kerr filed a complaint with the B.C. requests for independent medical examinations of
Human Rights Tribunal. After filing her complaint, she employees in appropriate circumstances including where
received a letter from her employer with a return to work there are bona fide safety concerns raised about the ability
plan. However, Ms. Kerr did not consider the plan to ade- of the employee to perform the responsibilities of the
quately accommodate her disability. For that reason, Ms. position and possible harm that could result to the
Kerr resigned from her position. employee and co-workers. Employers are entitled to
require sufficient medical information to analyze the level
The Tribunal found that the employer had failed to of risk involved in connection with the performance of
properly accommodate Ms. Kerr in light of her disability workplace responsibilities. Despite privacy legislation and
and awarded her compensation for loss of wages and decisions by the Privacy Commissions that reinforce the
bonuses in addition to compensation for the injury to her rights of employees to privacy, the common law and
dignity, feelings, and self-respect. In rendering its decision, human rights legislation recognizes the employer’s legiti-
the Tribunal referenced the well-established legal authori- mate right to request medical information in appropriate
ties requiring an employer to accommodate persons with circumstances. Furthermore, the law underscores the obli-
a disability to the point of undue hardship. The employer’s gation of employers to obtain sufficient medical informa-
response to the complaint was that it lacked sufficient tion from employees with a disability or a perceived disa-
medical information to assess the specific accommodation bility where there is a duty to accommodate or any bona
needs of Ms. Kerr. In addition, the employer emphasized fide safety issues.
the safety issues in relation to the operation of a motor
vehicle in light of her limited vision.
The Tribunal found that the employer failed to take WHAT WHAT WOULD YOU
adequate steps to obtain the necessary medical informa-
DO . . .tion to satisfy its duty to accommodate. The Tribunal spe-
cifically stated:
. . . with an employee who provides conflictingThere is no question that an employee may need to
medical information regarding her absenceprovide medical information to the employer in order
from the workplace?for that employee to be accommodated. However, the
employer cannot just wait until that information is pro-
Noreen has been off work on an unpaid sick leave forvided before taking any other steps as this would always
place the burden on the employee. approximately eight months. Every two months or so,
Noreen’s employer has received a medical note from
This decision is consistent with other decisions in Noreen’s family doctor confirming that she remains medi-
holding that an employer must take proactive steps to cally unfit to return to work for a further period of two
assess any medical limitations on the ability of an months, at which time she will be reassessed. Noreen’s
employee to perform the responsibilities of the position employer has now received three such notes. Two weeks
and to seek any additional medical information or voca- ago, when the employer reminded Noreen that it was time
tional rehabilitation advice. In this case, the Tribunal found for her to again update her medical information, Noreen
that the employer assumed that Ms. Kerr’s limited eyesight provided two medical notes. The first note was from her
would prevent her from operating a motor vehicle, which family doctor, stating that Noreen was able to return to
was not the case. Moreover, the Tribunal found that the work on a graduated basis, starting at 20 hours/per week —
employer did not investigate the extent to which Ms. Kerr 4 hours/day. The second medical note was from a spe-
was able to perform her responsibilities. Due to the failure cialist, stating that Noreen remained unable to return to
of the employer to make inquiries and to accommodate work for a further period of six months. Faced with con-
Ms. Kerr, the Tribunal awarded loss of income, including flicting medical information about Noreen, her employer is
the loss of bonus payments. Since Ms. Kerr attempted to not sure what to do.
return to her work without a satisfactory response from her
employer over a period of four years, the Tribunal awarded
$30,000 as damages for her loss of dignity, hurt feelings and What You Need To Know
self-respect.
The obligation on employers to accommodate a dis-
These decisions reinforce not only the right of abled employee to the point of undue hardship also
employers to request medical information in appropriate requires the cooperation of employees. An employee

4. Focus on Canadian Employment and Equality Rights 276
requesting time off work for reasons due to disability has with her manager, Cinzia Conforti. During their meeting,
an obligation under human rights law to cooperate in the Maciel informed Conforti that she was pregnant. Conforti
accommodation process by identifying his or her medical responded by expressing concerns over Maciel’s long-term
restrictions in order to permit the employer to understand availability, informing Maciel that she would have to check
what accommodation is required. Where there is con- with ‘‘head office’’ on how the company would deal with
flicting medical information, courts and tribunals have this situation. As a result, Maciel was sent home to await
stated that an employer does not have an inherent right to the final decision on her employment status.
demand that an employee submit to an independent
The next day Conforti contacted Maciel and informedmedical examination (IME) to resolve the conflict unless
her that she could no longer fill the receptionist positionthere is specific authority under a statute, contract or col-
for which she had been hired. According to Maciel, Con-lective agreement for the employer to do so. Rather, an
forti told her that the reason for her termination was thatemployer must exhaust other less intrusive means of gath-
she was going on maternity leave. Conforti later clarifiedering information before requesting that the employee
this statement, advising Maciel that her termination wassubmit to an IME (such as going back to the medical pro-
really due to the fact that she was only going to be able tofessionals who provided the conflicting medical informa-
work on a part-time basis. Maciel subsequently filed antion and requesting additional clarification). If these less
application with the Human Rights Tribunal of Ontariointrusive measures are not successful, an employer may
where she alleged that she had been discriminated againstthen consider requesting an IME, provided that it specifies
on the basis of her sex (pregnancy).to the employee its ‘‘reasonable and probable grounds’’
for the request. If employers embark on this course of
The respondent salon disputed Maciel’s allegationsaction, adjudicators have cautioned that the scope of the
arguing that she had never informed anyone at the salon ofIME should be limited only to what is medically relevant to
her pregnancy. The salon alleged that, after beginning herdetermine the employee’s limitations.
new job, Maciel had changed her mind and no longer
wanted to work on a full-time basis. Since there were no
part-time positions available at the salon, Conforti toldWhat Really Happened
Maciel that she would find out whether any of the other
salons located at the same shopping mall were hiringIn this particular case, Noreen’s employer was able to
part-time staff and would then get back to her the fol-write to both Noreen’s family doctor and the specialist,
lowing day. The next day, Conforti claimed to have phonednoting the conflicting medical information and requesting
Maciel and informed her that as there were no openings atadditional clarification. The employer was later informed by
any of the other salons, her employment was terminated.the family doctor that he had changed his mind in light of
At the hearing, Conforti testified that she only learned ofthe test results that he had recently received from the spe-
Maciel’s pregnancy after reading her application to the Tri-cialist (which had not been available to the family doctor at
bunal.the time he wrote the medical note) such that the family
doctor now concurred with the specialist’s recommenda-
The Tribunal rejected the salon’s version of eventstion that Noreen remain off work for a further six months.
ruling that there was ‘‘. . . no credible reason given for whyNoreen’s employer decided to accept this opinion and
the applicant, having applied and accepted a full-timediarized a reminder to follow up with Noreen and her
position, would propose on her first day of employmentdoctors in six months time.
that she work part-time’’. Moreover, Conforti’s failure to
inquire as to when and how many hours Maciel was willing
to work on a part-time basis was equally problematic. Con-
forti’s ‘‘complete lack of curiosity’’ about Maciel’s availa-CASE NOTES
bility meant that she would have no information to pass on
to the other salons that she allegedly contacted on Maciel’s
behalf. As a result, the Tribunal held that Maciel had made
out a prima facie case of discrimination and that the salonEmployer Ordered To Pay $35,000 After Firing
had failed to demonstrate a non-discriminatory explana-Pregnant Employee
tion for their termination of Maciel’s employment.
On August 11, 2008, Jessica Maciel began work as a
In terms of remedy, the Tribunal highlighted Maciel’sreceptionist for a salon. As part of her recruitment, Maciel
vulnerability stating that ‘‘[s]he was young, just out ofhad attended an interview with the salon’s manager and a
school and coping with an unplanned pregnancy’’. Thesetrial session at one of the salon’s two locations. Throughout
dire circumstances were compounded by the fact thatthis process, Maciel never advised her potential employer
Maciel had been unable find another job following herthat she was 4.5 months pregnant. This all changed with
termination. This meant that Maciel had no insurable hoursMaciel’s first day of work.
and thus was ineligible for maternity and parental benefits.
On that day, after experiencing a bit of morning sick- In light of these facts, the Tribunal awarded $20,719 for lost
ness during an initial training session, Maciel asked to meet wages and benefits and an additional $15,000 for injury to

5. Focus on Canadian Employment and Equality Rights277
dignity, feelings and self-respect. Finally, given that the onto the night shift between spring 2002 and fall 2004.
salon had no written policy on the accommodation of Rawleigh believed that he was exempt from working the
pregnant employees and maternity/parental leave prac- night shift.
tices, the Tribunal ordered that a new policy be developed
and distributed to all new and existing employees. In January 2003, Ms. Rawleigh was forced to resign
from her teaching position due to difficulties handling her
This case should serve as a warning to employers of loss of vision. She was subsequently diagnosed by a neu-
the serious consequences that will follow a decision to rologist as having a Chiari 1 malformation. Surgery was rec-
terminate an employee simply because she is pregnant. ommended to lessen her headaches. In late August and
Beyond the financial implications of such a decision, an September 2004, the store manager again began to
employer should also consider the possible loss of good- request that Rawleigh work the night shift. Rawleigh
will that could occur amongst its clientele. In this particular informed the manager that he was exempt as a result of his
case, all of Canada’s major newspapers carried stories out- wife’s condition but the manager was unable to locate any
lining the details of the Tribunal’s decision, including the exemption in Rawleigh’s file. Ms. Rawleigh’s neurological
name of the respondent employer. surgery was scheduled for November 2004. Rawleigh con-
tinued to refuse to work night shifts and sought a leave of
In the absence of a bona fide requirement, an
absence to care for his wife following her surgery. In the
employer cannot restrict a pregnant employee’s employ-
week leading up to her surgery, Ms. Rawleigh was rushed to
ment opportunities. Similarly, an employer cannot ask a
hospital as a result of her worsening condition. When Raw-
female applicant during the recruitment phase whether
leigh informed Safeway that he would be absent from work
she is, or intends to become, pregnant. In all cases, an
for this reason, Safeway informed him that he could not
employer maintains its duty to accommodate the needs of
take a sick day for someone else. When Rawleigh returned
women during pregnancy, short of undue hardship. Ulti-
to work following his leave of absence, Safeway continued
mately, when dealing with a pregnant employee, an
to press him to work night shifts, informing him that they
employer should be exceedingly cautious and ensure that
would no longer provide accommodation for
it is meeting all of its human rights and employment stan-
‘‘second-party illness’’.
dards related obligations.
Rawleigh filed a grievance seeking the same accom-(Maciel v. Fashion Coiffures Ltd., 2009 HRTO 1804.)
modation that he had been provided until 2004 — i.e., the
exemption from working night shifts. Rawleigh explained
that his wife required assistance at night as they had threeAccommodation of Employee’s Unique Family
young children and the symptoms associated with his
Responsibilities Required
wife’s conditions were total night blindness, throat closure
when lying flat, vomiting in her sleep, and seizures. Raw-Keith Rawleigh had been a unionized employee with
leigh’s family could not afford the cost associated withCanada Safeway Limited (‘‘Safeway’’) for over 27 years
obtaining paid help at night. Rawleigh proposed a transferwhen his wife had been diagnosed with retinitis pig-
to another store, but this was declined. The only accom-mentosa, a hereditary eye condition with symptoms
modation offered by Safeway was a demotion to the posi-including night blindness and reduced visual fields, eventu-
tion of cashier as they did not work night shifts. This reclas-ally deteriorating to legal blindness. There is no cure or
sification would have resulted in a decrease in Rawleigh’seffective treatment for retinitis pigmentosa. Despite her
hourly wage. As Rawleigh did not wish to be employed as aprogressive vision loss, Ms. Rawleigh was able to work as a
cashier, he accepted part-time work as a general clerkfull-time teacher for a number of years. In 1998, Ms. Raw-
under protest, as he would not be required to work nightleigh experienced a significant loss of vision and began to
shifts. The Union withdrew the grievance and Rawleighsuffer from severe headaches. In 2000, she once again
subsequently secured employment elsewhere withexperienced a significant loss of vision and was hospital-
reduced pay and quit.ized due to the increasing intensity of her headaches.
Between the fall of 2001 and the spring of 2002, Ms. Raw-
Rawleigh filed a human rights complaint alleging thatleigh’s dramatic vision loss resulted in her being deemed
Safeway had discriminated against him in employmentlegally blind.
because of family status, contrary to section 7 of Alberta’s
Human Rights, Citizenship and Multiculturalism Act. UnderAt the time that Ms. Rawleigh was declared legally
the Act, family status means ‘‘the status of being related toblind, Rawleigh was employed as a full-time general clerk
another person by blood, marriage or adoption’’. Rawleighworking the early morning shift in the produce depart-
sought lost wages until the end of 2007 and $9,000 inment. One of the requirements of working as a full-time
respect of injury to dignity and self-respect. The onus wasgeneral clerk contained in the collective agreement was
on Rawleigh to show that he had been discriminatedrotating through night shifts. In spring 2002, the store man-
against by Safeway in the area of employment on the basisager approached Rawleigh about rotating onto the night
of family status. Once discrimination had been established,crew. Rawleigh stated that his wife’s medical condition pre-
the onus shifted to Safeway to show that it had adopted avented him from doing so and as a result, he did not rotate

6. Focus on Canadian Employment and Equality Rights 278
standard for a purpose rationally connected to it opera-
DID YOU KNOW . . .tions, that the standard was adopted in good faith, and that
it accommodated Rawleigh up to the point of undue hard-
ship.
. . . that employers are increasingly faced with
The Director argued that discrimination was estab-
the challenge of motivating four generations
lished as Safeway made a significant change to Rawleigh’s
of employees?
hours of work on minimal notice which interfered with
substantial parental and other family duties and obliga- A recent study of U.S. employees conducted by The
tions. Safeway contended that Rawleigh had never been Learning Caf ´e, entitled Engaging a Changing Workforce,
exempt from working the night shift and, hence, there was examines the American workforce, now made up of four
no change to his terms and conditions of employment. different generations. These generations are defined by
The Learning Caf ´e as being the Millenials (born betweenThe Director argued that there was a rational connection
1977 and 1998), Generation X (born between 1965 andbetween Safeway’s rotation system and its operations, but
1976), the Baby Boomers (born between 1946 and 1964)that Safeway’s actions were not carried out in good faith.
and the Silent Generation (born between 1933 and 1945).With respect to undue hardship, the Director contended
While the study indicated that participants across all fourthat the only option presented was reclassification. Accom-
generations were consistently encouraged by the samemodation could have been facilitated by transferring him
motivators, it found that demotivators were genera-to another store. Moreover, although employee morale
tion-specific.
was a factor to be considered in accommodation requests,
adverse impact on employee morale did not automatically The top demotivator amongst Millenials was boredom
excuse the employer from its duty to accommodate. or a lack of challenge at work. Generation Xers ranked an
Safeway stated that it offered accommodation by way of inability to learn, grow or develop as their number one
the cashier position and transferring Rawleigh to another demotivator. Baby Boomers noted a lack of respect, appre-
store was not an option. Furthermore, Safeway asserted ciation or recognition as most demotivating, while the
that the night shift was undesirable and exempting Silent Generation indicated that other factors, including
feeling undervalued, topped their list of demotivators. Allsomeone from the night shift would cause serious difficul-
four generations rated challenging, stimulating and variedties with scheduling and staff morale and would violate the
work as their number one motivator. The study’s authorscollective agreement.
go on to offer suggestions for employers wishing to avoid
systemic discrimination on the basis of age and hoping toThe Panel found that Safeway had discriminated
foster a work environment that is inclusive of all four gener-against Rawleigh on the basis of family status, by requiring
ations.
him to work the night shift after years of not enforcing this
requirement, and had not accommodated him up to the The study reinforces the fact that today’s employers
point of undue hardship. There was a legitimate must recognize that each generation contends with work-
work-related reason for the rotation system and Safeway place factors that leave them dissatisfied and unproductive.
had adopted the requirement in good faith. Safeway’s If an employer chooses to cater to the needs of one or two
actions, however, demonstrated an obvious lack of generations, it will end up ignoring those of the others, and
empathy and compassion. Rawleigh and the Union were could end up facing decreased productivity, discrimination
claims, or the loss of valuable employees.more than prepared to engage in the accommodation
process. By contrast, Safeway was steadfast in offering the
(Source: http://www.thelearningcafe.net/downloads/first position that they felt met their operational needs. The
WhitePaper-EngagingChangingWorkforce.pdf)Panel fully acknowledged the important role that collective
agreements play in the workplace, but noted that the
Union was actively supporting Rawleigh’s requests for
accommodation. As a result, Safeway should not have
PROGRAMS & INITIATIVESattempted to shield itself behind the collective agreement
to avoid accommodating Rawleigh. This case does not
necessarily open the floodgates to employee claims that all
family scheduling needs should be accommodated; rather,
Federal
it illustrates that human rights panels are prepared to
require employers to accommodate employees with The Canadian Human Rights Commission has made
unique family obligations. available on its Web site its 2008-2009 Departmental Per-
formance Report. The Report highlights, among other
(Rawleigh v. Canada Safeway Limited, [2009] things, the key elements of the Commission’s mandate, the
S2005/02/0372 (Alta. H.R. Panel).) modernization of its dispute resolution process, the inte-

7. Focus on Canadian Employment and Equality Rights279
gration of outreach into all aspects of its work, and its work British Columbia
in guiding and supporting employers as they work to
foster, sustain and integrate human rights into their work- The B.C. Human Rights Coalition has made available on
places. To read the Report, please visit: http:// its Web site its October 2009 Newsletter, which includes an
www.tbs-sct.gc.ca/dpr-rmr/2008-2009/inst/hrc/ article entitled What Constitutes a Mental or Physical Disa-
hrctb-eng.asp. bility? The article reviews the outcomes of various B.C. cases
dealing with the meaning of either mental or physical disa-
bility. Among other things, the article notes that in the
employment context, case law has established that a disa-Alberta
bility must be ongoing and must prevent a person from
carrying out the essential duties of his or her position. ToThe Alberta Human Rights Commission has made
read the article, please see: http://www.bchrcoalition.org/available on its Web site its 2008-2009 Annual Review. The
documents/BCHRCnewsletterOct09.pdf.Review provides, among other things, an overview of the
Commission’s activities and accomplishments in the core
areas of: a) education and community initiatives, b) com-
Manitobaplaint resolution and settlement processes, and c) adjudi-
cation of complaints. To read the Review, please visit: http:/
The Manitoba Human Rights Commission has released/www.albertahumanrights.ab.ca/AHRCC_Annual_Review_
its 2008 Annual Report. Among other things, the Report2008_09_web_corrected.pdf.
reveals that complaints based on disability continue to be
the most common complaints filed. Discrimination due toThe Alberta Human Rights Commission has also made
sex (including pregnancy), and ancestry/ethnic/nationalavailable on its Web site a Bulletin and Information Sheets
origin were the second and third most common com-for employers, employees and doctors entitled Obtaining
plaints, respectively. The Report also details the Commis-and Responding to Medical Information in the Workplace.
sion’s publication, education and outreach activities.The plain-language Bulletin and Information Sheets were
Although it is not yet available on the Commission’s Webdeveloped in response to the many inquiries that the
site, more information about the Report can be found byCommission receives about issues related to medical
v i s i t i n g : h t t p : / / w w w . g o v . m b . c a / h r c / e n g l i s h /absences and an employee’s medical ability to work. The
news_releases/10-15-2009.html.Commission anticipates that these resources will assist
employers, employees and doctors achieve effective work-
place accommodations for employees. For more informa-
Nova Scotiation, or to read the Bulletin and Information Sheets, please
visit: http://www.albertahumanrights.ab.ca/publications/
The Nova Scotia Human Rights Commission hasAHRIS/2009/October_28.asp.
announced the launch of its new Web site. The new site is
easier to use, is more accessible, and provides more infor-The Office of the Information and Privacy Commis-
mation for Nova Scotians. The site continues to providesioner of Alberta has made available on its Web site a Fact
updated information on human rights education work-Sheet for employees entitled Privacy in the Time of a Pan-
shops, guidelines for employers and employees, disputedemic. The Fact Sheet was created to provide clarification
resolution options and complaint filing processes. Toto organizations and employees on how privacy laws apply
explore the new site, please visit: http://www.gov.ns.ca/in the private sector workplace during the H1N1 pandemic.
humanrights/.Among other things, the Fact Sheet notes that if the H1N1
pandemic was declared to be an emergency pandemic by
the federal, provincial and territorial authorities in Canada,
Ontarioprivacy legislation would not prevent the sharing of infor-
mation. However, in the current non-emergency situation,
The Office of the Information and Privacy Commis-privacy laws apply as usual and employers should only
sioner/Ontario (‘‘IPC’’) has made available on its Web site acollect the minimum amount of personal information pos-
paper entitled A Pragmatic Approach to Privacy Risksible for pandemic planning purposes (such as alternate
Optimization. The paper, prepared by Nymity Inc. and thecontact information for employees). Employees are not
IPC, introduces Nymity’s Privacy Risk Optimization Processrequired to provide personal information for pandemic
(‘‘PROP’’). PROP enables the implementation of privacy intoplanning purposes, however under the circumstances, the
operational policies and procedures, resulting in ‘‘PrivacyOffice recognizes that there may be some benefit in volun-
by Design’’ for business practices. Privacy by Design wasteering additional information, at the employee’s discre-
tion. To read the Fact Sheet, please visit: http://www.oipc. developed by the Information and Privacy Commissioner
ab.ca/Downloads/documentloader.ashx?id=2496. of Ontario, and asserts that the future of privacy cannot be

8. Focus on Canadian Employment and Equality Rights 280
assured solely by compliance with regulatory frameworks, that risks can be positive and negative and that organiza-
but rather, organizations should strive to make privacy their tions can strive to maximize positive risks and to mitigate
default mode of operation. Privacy by Design extends to IT negative ones. To read the paper, please visit: http://
systems, physical design and infrastructure, and account- www.ipc.on.ca/images/Resources/pbd-privacy-risk.pdf.
able business practices. PROP is based on the concepts
Q & A
Can an employer force its employees to get the H1N1 influenza vaccine?
Generally speaking an employer cannot require its employees to get the H1N1 influenza vaccine. That said,
the issue becomes more complicated when considering employees who work in the health care sector. Studies
indicate that mandatory vaccination programs considerably reduce the risk of patient infection. As the H1N1
outbreak continues and patient care becomes increasingly difficult, health care facilities may begin to consider
whether this is a viable option for their workplace. While the case law on this issue is mixed, in a recent Ontario
labour–arbitration decision, the Board upheld a hospital’s practice of placing unvaccinated nurses on unpaid
leaves of absence during an influenza outbreak. Relying on several previous decisions, the Board ruled that the
mandatory vaccination clause in the hospital’s collective agreement was enforceable because it was a ‘‘reason-
able rule’’ designed to meet the ‘‘legitimate and crucial objectives’’ of its operation, i.e., the prevention of
infection amongst its patients. However, in another Ontario decision, the implementation of a similar policy was
rejected. In that case, the Board ruled that the reasonableness of such a policy was not a relevant consideration
since the employer’s unilateral action requiring its employees receive a flu shot constituted an infringement of
their constitutional rights. That said, the Board went on to suggest that an employer may be able to mandate that
its employees undergo certain medical treatment where the employer has specifically bargained for that right.
Regardless, as employers work to protect their employees from the continued spread of H1N1, the introduc-
tion of a mandatory vaccination policy should remain an option of last resort. The majority of employers would be
well-served by relying on other, less intrusive methods of prevention such as educating its employees on the
symptoms of the virus and encouraging proper handwashing techniques.
(Sources: North Bay General Hospital v. O.N.A. (2009), 180 L.A.C. (4th) 52 (Chauvin) and St. Peter’s Health
System v. Canadian Union of Public Employees, Local 778 (Flu Vaccination Grievance) (2002), 106 L.A.C. (4th) 170.)