In a recent case, the decision for which was rendered in April 2013, the Syndicat des travailleuses et travailleurs de Loto-Québec (CSN) (the “Union”) had filed a grievance against Loto-Québec (the “Employer”) challenging the contents of a medical examination and questionnaire. This grievance was ultimately dismissed.

The facts of the case are the following:

In a job posting, the Employer outlined the requirements for the position of administrative technician, which included the ability  to handle boxes weighing up to 40 pounds. This latter aspect was to be assessed during a pre-hiring medical exam.

The first part of the examination consisted of a standard questionnaire on the candidate’s general state of health, which included questions on medical history as well as alcohol and drug use. The medical examination was very complete and included procedures such as taking vital signs, measuring blood pressure, a back and spine x-ray, taking a urine sample and an eyesight exam.

However, in this case, only the questions and answers which were related to the requirements of the position, namely musculoskeletal issues that could have an impact on the ability to handle heavy boxes, were documented by the medical examiner. Also, the results of the examination remained with the medical clinic that had administered the tests, the Employer only being provided with a “certificate of aptitude” confirming or denying the candidate’s ability to perform the tasks related to the position.

In its grievance, the Union alleged that the medical examination went beyond what was necessary to verify the aptitude of a candidate to perform the tasks required by the position. It also criticized the Employer for having “gathered”, through the medical examination, private information in violation of the right to privacy and to personal integrity of employees. The Union referred to numerous sections of the Quebec Charter of Human Rights and Freedoms (“Charter”).

On the merits of the case, the Arbitration Tribunal asserted that the Employer’s right to request a pre-hiring medical examination, the candidate selection process or the job requirements were not in dispute. Rather, it was the contents of the examination and medical questionnaire that were contested.

The Arbitration Tribunal found that, in this case, the Employer did not violate the Charter because it did not collect information related to the candidate’s state of health that went beyond what was necessary. Indeed, the protocol for the medical examination, as established between the Employer and medical clinic,  indicated that there should be specific focus on the musculoskeletal system only, which is clearly related to the candidate’s ability to perform the job.

In light of the specific facts of this case, the Tribunal found that there was no issue of discrimination, but rather a question of a candidate’s right to privacy.TheUnion had not established that the questions required in the form or medical tests performed went beyond the verification of a candidate’s physical ability. This evidence must necessarily be made through a medical expert or medical professional. In the absence of such evidence, it is impossible to determine if a candidate’s right to privacy had been infringed.

The take-home message for employers is the following: if a pre-hiring medical examination is required in order to assess a candidate’s ability to perform the necessary tasks of the position, it should be strictly limited to what is necessary to make that determination. The prudent employer should also refrain from obtaining medical information from the medical clinic beyond a confirmation (or denial) of the candidate’s ability to perform the job, including specific limitations that may apply.  Otherwise, a medical examination could be declared illegal by the courts for violating the right to privacy of the candidates.