many years. Arbitrator Etherington discussed the pervasiveness of privacy rights in the
arbitral jurisprudence dating back to the early 1960s,
This case deals with the appropriate balancing of employee privacy interests with
the legitimate business interests of the employer in the context of a requirement
to provide confidential personal health information to establish entitlement to
short term sick leave benefits at the point of a five day absence. The arbitral
jurisprudence going back to the 1960’s is replete with decisions dealing with the
balancing of these interests in many different contexts ranging from the search of
employees or their effects, drug and alcohol testing, video surveillance of
employee activity, employer access to employee medical information, lie detector
tests, police security checks, and most recently, the use of biometric identification
devices for security and payroll purposes. The common theme running
throughout the long line of jurisprudence that has evolved in all these different
contexts, is an arbitral recognition that individual employees have important
privacy interests that must be balanced with the legitimate business interests of
employers when assessing an employer policy or company rule that may
interfere with employee privacy interests. Thus where unions have been able to
demonstrate that the privacy interests of affected employees are threatened by
an employer policy or directive, whether the rule deals with employee searches,
video surveillance, or drug and alcohol testing, employers have been called upon
to demonstrate that the rule or policy is reasonably necessary, considered on an
objective basis, to protect legitimate employer business interests or to prove that
the rule or policy has been agreed to in the collective agreement. And in some
areas, as noted by the union herein, human rights or privacy legislation has
intervened to prevent the parties from agreeing to a practice or policy that is
contrary to that legislation. However, I note that in most cases the legislation has
also recognized that the rights provided for therein are not absolute and some
mechanism is provided for employers to demonstrate that they would suffer
undue hardship or unreasonable detriment to their business interests if their
policies or directives were to be struck down. Finally, if one looks at the many
decisions on these issues in the various contexts referred to above, in
determining the appropriate balancing of interests between privacy and business
concerns in particular cases, there is a proportionality principle that is implicit in
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