RIGHT TO PRIVACY TO BECOME LAW
The Ontario Government is considering a draft piece of privacy legislation that will significantly impact the way employers handle confidential information arising out of pension and benefit plans.
Traditionally, employers have always respected that employees have the right to privacy with respect to what treatments and medications for which they are seeking compensation through the benefits plan and with respect to the details of their pension entitlements.
The reality, however, is that there are not a lot of laws governing how employers handle this information. A persistent employer might very well find out from their insurer what kind of medications an employee is putting through the plan and be able to determine the employee=s illness.
The draft legislation will not only require confidentiality with respect to this information but will set out rules as to how that information is collected, used by the employer and disclosed to third parties.
The stated purposes of the draft legislation are to protect the privacy of individuals. Individuals are stated to be entitled to provide or withhold consent with respect to the collection, use and disclosure of their personal information. They are also said to have the right to have access to their personal information collected by someone else and the right to challenge the right to accuracy and completeness of their personal information.
Regular readers of this column will know that, except in some unionized sectors where there is a clause in the collective agreement allowing employees to have access to their personnel files, no law presently exists allowing employees to see what is in their file.
Typically, when someone has asked me whether an employee has the right to see their file, I would say that they do not. The employer has paid someone a salary to take the time and effort to collect the information and the employer owns the file. There is no law requiring that employees have access to the file.
If the draft legislation is passed, this will change. Employees will have a right to see everything in their file and to challenge the accuracy of information recorded there.
This will not mean that employees have the right to go before the Privacy Commissioner if they think some criticism of their performance recorded in their file is inaccurate. I doubt the Privacy Commissioner will want to engage in such a subjective investigation. It will, however, allow employees to challenge the accuracy of purely factual matters relating to their personal information.
Given that employees will have the right to access their personnel files, employers will have to be more careful about putting notes to themselves in those files with respect to an employee=s performance.
The draft legislation will also affect how employers collect information about potential employee misconduct and to whom they disclose that information.
The reality is that the new legislation will not significantly change how employers use confidential information in relation to their employees. Most employers keep all employee information confidential. The new legislation, however, will require every employer in the Province to formalize its rules and policies around confidential information and designate a person in each organization who handles all inquires and complaints with respect to the collection of private information.
For those employers out there who are shivering at the thought of yet another human resource project requiring their time and effort, the good new is that the draft legislation is not likely to come into force before January of 2004. Until then, stay posted.
As published in the Hamilton Spectator, August 12, 2002