InfoLAW: Occupational Health Nursing

Occupational health nurses (OHNs) deliver a variety of healthcare services in their workplace. Some areas of concern specific to occupational health nursing (OH nursing) are:

Legislation

Provincial, territorial, and federal legislation affecting OH nursing includes law governing occupational health and safety, workers’ compensation, employment and labour relations, and privacy. The employer must ensure compliance with the law, which is often done through policies and procedures. Where legislation contains specific requirements, adherence to those requirements must be carefully documented to show due diligence. Breaches of legislation can result in legal proceedings or penalties. OHNs must balance their legal duties as employees with their legal obligations as regulated health professionals.

Human Rights Legislation and the Duty to Accommodate

OHNs have a key role in ensuring that health-related practices and policies within the organization where they work do not discriminate against a person or culture. In employment settings, the employer has a duty to make reasonable accommodations for an employee in need of accommodation for various reasons, if the employee is otherwise capable of doing the work. However, the duty to accommodate does have limitations.¹ The employer is only required to accommodate an employee to the point of undue hardship. Undue hardship would typically be determined by the court considering a variety of factors, such as extensive costs in relation to the financial resources of the employer, the nature of the employee’s duties, and whether the accommodation would infringe on the rights of other employees. Further, there may be legitimate occupational requirements that an employer must meet. Workplace policies and practices, including decisions about accommodation, must reflect these requirements.

The employer also has a duty to investigate² all possible means of providing accommodation and cannot solely rely on reports from other bodies.

An OHN may be involved in the employer’s investigation into the employee’s accommodation request and how it will be implemented. An OHN can be involved in the assessment of employees seeking accommodations and will need to carefully communicate what is legally required to the employer while maintaining patient confidentiality. This balance is discussed in greater detail below under Privacy and Confidentiality.

Criminal Liability

The Criminal Code of Canada imposes a legal duty on everyone who has the authority to direct another person’s work or task to take reasonable steps to prevent bodily harm to that or any person, arising from that work or task. The duty applies both to individuals and organizations.³ The OHN can play an important role in implementing, monitoring, and advocating for the employer’s reasonable measures for the safety of their employees and the public.

Privacy and Confidentiality

An OHN faces unique challenges if the employer asks for disclosure of employee health information.⁴ Generally, the employer has no right of access to employee health records⁵, but is entitled to know if the employee is fit, unfit, or fit with limitations, to perform a particular job. The information an employer is entitled to will not include a medical diagnosis or other specific health information. Exceptions or refinements to this general rule may be contained in legislation or regulation, be ordered by a court or authorized by the employee. Where exceptions exist, they must be followed to the letter. For example, provincial or territorial legislation may authorize disclosure of information for the purpose of a grievance or litigation without the employee’s consent.⁶ This type of disclosure is commonly made to the lawyer or law firm representing the employer. While such disclosure may arise over the course of legal proceedings, it can only be made on the basis of the legal authority permitting it, not simply by request or demand.

An OHN facing a request to disclose employee health records to someone other than the employee can require the request to be made in writing. The request must describe the circumstances prompting the request for disclosure, the specific information requested, and the legal authority upon which the request is based. Without legitimate legal authority for disclosure in the circumstances, or the employee’s consent, the OHN should not disclose. In deciding on an appropriate course of action, the OHN may wish to consider making use of available resources, such as contacting the CNPS for further guidance and consulting with the employer’s privacy officer or legal counsel where appropriate.

Over the course of the COVID-19 pandemic, OHNs have been faced with collecting and disclosing COVID-19 vaccination statuses, and creating vaccination policies. Please consult the CNPS Ask a Lawyer on COVID-19 Considerations for OHNs. Due to the evolving nature of the pandemic, what is considered to be reasonable disclosure may change in the future. It would therefore be prudent to consult the latest guidance from your privacy and nursing regulators on a regular basis.

Legal Obligations Regarding Health Records

The OHN is often legally responsible for the employees’ health records. It will be important for OHNs to determine whether they are custodians (also known as “trustees” in some jurisdictions) of health records. A nurse is likely the custodian or trustee where they are employed or contracted by an organization that is not itself a healthcare provider, such as an OHN working for a manufacturing company. Custodians or trustees are generally responsible for maintaining and storing records in accordance with the law, as well as for assessing when information can be legally disclosed or transferred to third parties. Occupational health departments often deal with change, such as transfer to a new corporation or existing occupational health services being eliminated. This can result in various challenges for the OHN who is typically the custodian or trustee of the health records. A major concern for a nurse facing these changes is how to preserve the confidentiality of employee health records and to ensure that any disclosure of personal health information is in strict compliance with the specific, limited exceptions set out in the applicable legislation.

The obligation of regulated health professionals to maintain the confidentiality of client health information is found in legislation, standards of practice, court decisions, and professional codes of ethics. Failure to maintain client confidentiality may result in a finding of professional misconduct by your nursing regulator. In a situation of organizational change, it is important to be aware of your legal obligations as a custodian or a trustee and follow your privacy regulator’s guidance to ensure that any retention or transfer of the health records for which you are responsible is done in accordance with applicable law.

Key Takeaways

• Respecting the confidentiality of an employee’s personal health information is an important component of a nurse’s professional, legal and ethical obligations.
• It is important to be fair, empathetic and reasonable when presented with an employee’s request for accommodation.
• It is important to maintain the patient’s privacy and confidentiality at all times. If disclosure is required or permitted by law, ensure that it is limited to what is necessary under the circumstances.
• Disclosure of employee health information without consent may be permitted or required by law, including child protection legislation, public health and communicable disease legislation, and privacy legislation (e.g. provisions authorizing disclosure to protect public health and safety or upon request from a legal authority during legal proceedings).
• Disclosures of employee health information that relate to COVID-19 vaccination status may have specific privacy and confidentiality considerations.
• In a case where the duty or ability to disclose is unclear, it would be prudent to seek legal advice.

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1. A Supreme Court of Canada decision held that “the employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.” Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 at para. 19.
2. An investigation may take various forms. In Honda Canada Inc. v. Keays, 2008 SCC 39 at paras. 71 and 94, the Supreme Court of Canada recognized that employers are justified in monitoring the absence of employees, particularly those who are regularly absent from work.
3. Criminal Code, R.S.C., 1985, c. C-46, s. 217.1: “Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”
4. For more information on confidentiality of health information, please consult our InfoLAW on the subject.
5. Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 63(2): “No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute to a worker health record concerning a worker without the worker’s written consent.”
6. For example, see Alberta’s Health Information Act, R.S.A. 2000, c. H-5, s. 35(1)(h)-(i).

April 2022

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.