OCTOBER 2011

WAKING UP TO SLEEP APNEA : The Risks Associated with Sleep Apnea in the Trucking Industry and How Employers Can Manage Them

PETER A. GALL, Q.C. KATE BAYNE

I . O V E R V I E W The effects of sleep apnea can endanger workers and expose employers to liability. This is particularly so in the trucking industry where the symptoms of sleep apnea – such as excessive daytime sleepiness, impaired alertness, slow reaction time and vision problems – can have grave consequences. In the United States, issues related to sleep apnea in the trucking industry have inspired entire conferences on the subject. This may be related, in part, to the emergence of litigation regarding who is responsible for the damage caused by employees suffering from sleep apnea (see for example, Achey v. Crete Carrier Corporation, No. 07-cv-3592 (E.D.Pa., Decision of March 30, 2009 - Eastern District Court of Pennsylvania). In Canada, the real risks and potential liabilities resulting from sleep apnea in the trucking industry must be taken seriously. The primary purpose of this paper is to identify, broadly speaking, the legal liability issues facing employers in Canada regarding sleep apnea in the workplace and, in particular, in the trucking industry. The purpose is to show that there are significant legal liability issues that require employers to address sleep apnea; the risks are simply too serious to ignore. Furthermore, to the extent that employers wish to be proactive and to prevent the risks and costs associated with sleep apnea before a serious accident occurs, this paper clarifies that there are no legal barriers, imposed by human rights law, privacy law, or otherwise, that prohibit an employer from doing so. This paper is not intended to provided exhaustive coverage of these issues, but rather, to give a brief introduction to employers in respect of these issues.

I I . W H A T I S S L E E P A P N E A ? Sleep apnea is a disorder characterized by temporary pauses or cessation of breath during sleep. There are three forms of sleep apnea: central sleep apnea, obstructive sleep apnea and complex or mixed sleep apnea (a combination of central sleep apnea and obstructive sleep apnea).

• Central sleep apnea (CSA) results from the respiratory centre of the brain failing to tell the sleeper’s breathing muscles to move, thus the sleeper temporarily stops breathing and does not continue breathing until awakened. Typically the sleeper will awaken several times throughout the night gasping for air. Where these interruptions occur frequently, the sleeper experiences insomnia and excessive daytime sleepiness. In severe cases seizures, brain damage and/or sudden death can occur.

• Obstructive sleep apnea (OSA) is the most common form of sleep apnea and occurs where the sleeper has a physical block to airflow, usually caused by the tongue blocking the back of the throat. Common symptoms include snoring, insomnia, and excessive daytime sleepiness. The risk of developing OSA rises with age, smoking and body weight. Moreover, individuals with diabetes have up to three times the risk of developing this form of sleep apnea.

• Mixed sleep or combination sleep apnea (MSA) is characterized by brief periods of CSA followed by longer periods of OSA. Common symptoms are those found in OSA and CSA.

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Sleep apnea afflicts more than 20 million Americans, however more than 85% of cases are still undiagnosed. The resulting symptoms of all forms of sleep apnea include: daytime fatigue and sleepiness, insomnia, memory problems, anxiety, poor concentration and attention, headaches, and difficulty performing work duties.1 Consequently, there are a variety of risks involved for employers with employees suffering from sleep apnea. This is particularly true within the trucking industry. The Federal Motor Carrier Safety Administration (FMCSA) in the United States has determined that the prevalence of sleep apnea among licensed commercial drivers is as follows:

• 17% mild sleep apnea;

• 5% moderate sleep apnea; and

• 4% severe sleep apnea.2 Individuals with sleep apnea are six times more likely to get into a motor vehicle accident, and seven times more likely to have multiple accidents. More than 800,000 drivers in the U.S. were involved in accidents associated with sleep apnea resulting in 1400 fatalities. These accidents cost over $15.9 billion dollars in damages. However, it is estimated that if all drivers with sleep apnea were treated it could result in $11.1 billion dollars in damages being saved, as well as the lives of nearly 1,000 individuals. The consequences of the risks inherent in employing and hiring employees with sleep apnea in the trucking industry are outlined below.

I I I . L E G A L L I A B I L I T Y I S S U E S F O R E M P L O Y E R S Even a brief overview of the potential scope of legal liability for employers related to sleep apnea in the workplace demonstrates that sleep apnea is not an issue that employers can afford to ignore. Below, three primary areas of legal liability are briefly explored – liability with respect to occupational health and safety standards, criminal liability and civil liability. A . O c c u p a t i o n a l H e a l t h a n d S a f e t y There are fourteen jurisdictions in Canada, each one having its own occupational and health (OH&S) legislation. For the majority of working Canadians, the appropriate agency to contact is that of the province or territory in which the work is performed. However, federal legislation covers those employees working for the federal government and Crown, as well as employees of companies or sectors that operate across provincial and/or international borders.3 Each province or territory has legislation addressing OH&S, typically called the Occupational Health and Safety Act. These Acts generally apply to workplaces within the region, except for

1Medicinenet. Online: < http://www.medicinenet.com/sleep_apnea/article.htm> 2 J. Casale, “Trucking Wakes Up to Sleep Apnea” Business Insurance Magazine Feb 21 2010. Online: <http://www.businessinsurance.com/article/20100221/ISSUE01/302219975#> 3 OH&S Legislation in Canada – Introduction. Canadian Centre for Occupational Health and Safety. Online <http://www/ccohs.ca/oshanswers/legisl/intro.html>

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work that is conducted in private homes. In some jurisdictions, such as British Columbia, a workers’ compensation board has the responsibility of overseeing OH&S. In jurisdictions such as Ontario, OH&S is handled by a ministry of labour. The majority of the OH&S Acts provide for a shared responsibility system whereby the employer and the employee are responsible for ensuring workplace safety. The definition of “employer” varies across the Acts, but a general definition as set out under the Canada Labour Code, R.S.C. 1985, C.L-2, s.3 is “any person who employs one or more employees” and includes an employer organization or agent acting on the employer’s behalf. The Ontario Act has a broader definition and the Court in R. v. Wyssen (1992), 10 O.R. (3d) 193, 58 O.A.C. 379 (C.A), deemed it to include an independent contractor who has contracted for services. The general duties to which an employer is responsible under OH&S Acts include:

• taking reasonable precautions to ensure the workplace is safe;

• supplying protective equipment to employees and ensuring they know how to use it properly;

• training employees as to any potential hazards with respect to their employment;

• training employees as to how to handle emergencies;

• establishing and maintaining a joint health and safety committee or causing workers to select one or employees as a health and safety representative; and

• appointing a competent supervisor who sets the standard for performance and ensures safe working conditions are observed.

Ontario has specifically prescribed such duties under its Act,4 as has Quebec.5 British Columbia has no one section outlining employer’s duties, however they are outlined throughout the regulations. OH&S legislation and regulations hold employers responsible to protect employee health and safety. Thus, it is vital for employers to familiarize themselves with the applicable OH&S Act or Acts, and ensure their workplace is in compliance with such Acts. Failure to comply with the appropriate legislation may result in unexpected charges and penalties, as discussed below. For Canadian employers in the trucking industry, the duty to take reasonable steps to ensure its drivers’ workplace is safe results in an obligation to ensure that the employee can safely operate the work vehicle. Employees with sleep apnea may have impaired abilities with respect to the control and care required to safely operate the vehicle. As a result, the employer may be in breach of OH&S legislation if the employee is permitted to operate the vehicle and/or the conditions surrounding the operation of the vehicle are not reasonably safe given the risks inherent in allowing an employee with sleep apnea to operate the vehicle. In the United States, the FMCSA is debating the implementation of a new regulation that would require all trucking companies to test their employees for sleep apnea. The “fitness for duty” testing would also include monitoring of compliance with treatment. Many American trucking

4 Occupational Health and Safety Act, R.S.O 1990, c. O-1, s.26(1) 5 Act respecting occupational health and safety, R.S.Q. c.S-2.1, s.51(4).

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corporations have already commenced such programs. These companies amended their medical interview for employees and instituted additional techniques to help identify those with undiagnosed sleep apnea. The FMCSA’s Regulations already stipulate that a driver is not to operate a commercial vehicle if he or she has a breathing condition. Section 391.41(b)(5) of the Federal Motor Carrier Safety Regulations (FMCSR) states a person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with his/her ability to control and drive a commercial motor vehicle safely. Each state has its own medical standards with respect to requirements for operating a commercial vehicle, however many states have adopted this provision or something similar, and have determined that moderate to severe sleep apnea is a condition that disqualifies an individual from operating a commercial vehicle. Trucking employers in the U.S. have been advised to disqualify drivers suspected of having sleep apnea until the diagnosis has been ruled out, or until it has been successfully treated. In Canada, there has yet to be discussion of similar legislation, however, in light of the rapidly emerging body of knowledge in regard to sleep apnea and its effects, it is wise for employers to address the issue to some degree. OH&S Acts in Canada also place duties on employees including:

• wearing proper safety equipment as directed by the employer;

• responsibility to work in compliance with OH&S Acts and Regulations;

• responsibility to report workplace hazards and dangers;

• cooperating with their employer and colleagues in regard to ensuring health and safety are protected; and

• taking reasonable precautions to protect their own health and safety as well as that of other persons in the workplace. 6

In B.C., employees have the specific duty to advise the employer of any physical or mental impairment which may affect the employee’s ability to work safely, as well as a general duty to report any unsafe working conditions. The Canada Labour Code defines an employee as “any person employed by the employer”. The Acts of British Columbia, Alberta, Newfoundland, Quebec, Saskatchewan, Yukon and Northwest Territories have definitions of an “employee” that likely exclude the possibility of an independent contractor being caught by the duties imposed under the applicable Act, so long as the contractor has an independent business existence. Dependent contractors are included in the definition of employee. Under common law, the principles of mutual implied safety obligations upon the employer and employee, including the employer’s duty to provide a safe workplace, has been recognized in cases such as Manor v. Marshall [1955] 4 D.L.R. 584 at p.587, [1955] O.R. 586 (C.A.), quoting 22 Halsbury’s Laws of England, 2nd ed., p.176, s.296:

6 Canadian Centre for Occupational Health and Safety. OH&S Legislation in Canada – Basic Responsibilities. Online: <http://www.ccohs.ca/oshanswers/legisl/responsi.html

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It is an implied term of the contract of service at common law that a servant take upon himself the risks incidental to his employment…the master does not warrant the safety of the servant’s employment; he undertakes only that he will take all reasonable precautions to protect him against accidents.

The employer’s undertaking to take “all reasonable precautions” was discussed in Cole v. De Trafford (No 2) [1918] 2 K.B. 523 (C.A.), the Court held that the employer has an obligation not to conduct an act of personal negligence that results in the worker being exposed to danger. What constitutes personal negligence will depend upon the circumstances of each case. To enforce the duties set out under the various OH&S Acts, provinces, territories and the federal government have given safety officers broad statutory powers to ensure compliance with the aforementioned duties. Legislation will generally require that an employer provide reasonable assistance to the safety officer, including facilitating entry into the worksite, and permitting inspection or examination of the site and materials/documents therein as deemed necessary by the safety officer. An officer generally has the right to enter a workplace controlled by an employer at any reasonable time and may exercise powers including:

• directing the employer to produce documents and information relating to the safety and health of its employees and to make copies or otherwise extract such information;

• conducting examinations, tests, inquiries and inspections or direct the employer to do so; and

• directing the employer to make or provide statements respecting the working conditions that affect the safety or health of the employees.

A safety officer may make any order prescribed by the applicable regulation including an order demanding the production of documents and/or the installation of safety devices. If an employer fails to abide by the officer’s order, the employer may be prosecuted for non-compliance. OH&S Legislation generally provides for administrative penalties and/or criminal prosecution for contraventions of the legislation or regulations. In B.C., administrative penalties are imposed in cases of violations resulting in injury or death and their magnitude depends upon the severity of the violation and the size of the employee’s payroll. If criminal charges are laid against an employer in B.C. for a workplace accident or incident, the fines may be in excess of $100,000, particularly in cases involving a fatality. Federally, employees have been fined more than $300,000 for violations of OH&S legislation. Importantly, employers are strictly liable for violations of OH&S legislation, a lower standard of liability than that which exists under the Criminal Code. Not only are these significant monetary penalties, but in the cases involving a criminal prosecution, the employer must bear the injury of any negative publicity associated with criminal charges, as well as the cost of defending itself against these charges.

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B . C r i m i n a l L i a b i l i t y One of the most serious sanctions an employer can face for failing to ensure the safety of both its employees and the public at large is a criminal record. Where employers are aware of certain safety risks attributed to or frequently seen within the profession, they may face criminal charges if certain steps are not taken to decrease the risks to safety being caused. For employers in the trucking industry, the prevalence of, and danger caused by, sleep apnea in drivers may lead to criminal charges as against the employer where reasonable steps to ensure the safety of drivers and the public are not taken. As a result of Bill C-45, federal legislation amending the Canadian Criminal Code, R.S.C. 1985, c.C-46 (the “Code”), there are now legal duties for OH&S that impose criminal sanctions if breached. On March 31, 2004, s. 217.1 was added to the Code resulting in the “criminalization” of OH&S provisions. The Code goes further than any other OH&S legislation in Canada, casting a net on all employees that may be affected by the work or task in question, as well as the general public. This new rule attributes criminal liability to employer organizations, including corporations, as well as their representatives including those who direct the work of others. Section 217.1 of the Code states:

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.

This section establishes a legal duty on all persons deemed to “direct the work of others” to take reasonable steps to ensure the safety of the workers they are directing as well as the general public. The provision applies to all Canadian organizations and individuals who direct the work of others including governments, charities, private companies and corporations. Bill C-45 also added Sections 22.1 (imposing criminal liability on organizations and its representatives for negligence)7 and 22.2 (other offences)8 to the Code.

7 22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if (a) acting within the scope of their authority (i) one of its representatives is a party to the offence, or (ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and (b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence. 8 22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers (a) acting within the scope of their authority, is a party to the offence; (b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or (c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.

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There are two elements necessary to constitute a crime under the Code: first the criminal act itself, known as the actus reus, and second, the intent, known as mens rea. The effect of Bill C-45 is that it is no longer necessary to prove both of these elements within the same individual, but rather within the employer organization as a whole. Thus, where an employer organization is criminally negligent for injury or death to an employee, the criminal liability of the employer will be based on the actions and moral fault of the employer as a whole. The mental intent can be demonstrated by the employer’s “directing mind,” which is now the aggregate fault of the employers’ senior members with operational and/or policy-making authority.9 The offense itself, however, can be committed by any employee or member of the employer organization. Consequently, an employer may be deemed criminally negligent where the duty to take reasonable measures to protect the safety of employees and the public is “wantonly” or recklessly disregarded, and bodily harm or death results. The Court is guided by three general components in rendering a penalty or conviction, namely: moral blameworthiness, public interest and prospects of rehabilitation. As with any other medical condition, if the employer has knowledge or ought to have knowledge of the employee’s sleep apnea and the employer, acting through the aggregate of its senior officials, does not take reasonable steps to ensure work is performed safely in light of the consequences of such a condition, the employer may face criminal sanctions. The possibility of being held criminally liable will depend on the circumstances of each case, in particular the degree of knowledge held by the employer in regard to the employee’s sleep apnea and the treatment, if any, of such condition. Those individuals who will be deemed culpable under the Code are those who direct the work of the employee. Given that there are no direct supervisors within the trucking industry, it is likely that any criminal liability will rest with the employer as a whole, rather than any one individual supervisor. It is also possible for directors to be deemed liable under s. 217.1, given that they are often the “directing mind” of the corporation. The definition of director under the Business Corporations Act in British Columbia is:

(a) in relation to a [B.C.] company, an individual who is a member of the board of directors of the company as a result of having been elected or appointed to that position, or

(b) in relation to a corporation other than a [B.C.] company, a person who is a member of the board of directors or other governing body of the corporation regardless of the title by which that person is designated.

There may also be instances where an officer is liable where the officer has duties analogous to those of a director. In Berger v. Willowdale A.M.C. (1982), 131 D.L.R. (3d) 585 (Ont. H.C.J.), affd 145 D.L.R. (3d) 247, 41 O.R. (2d) 89 (C.A.) the court set out several factors to help determine the liability of an executive officer of a corporation, these include:

• whether the risk should have been apparent to the executive officer;

• the length of time the risk was or should have been apparent to the executive officer; 9 Canadian Construction Association, “Summary of Bill C-45: An Act to Amend the Criminal Code (Criminal Liability of Corporations)” May 2004.

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• whether the executive officer had the power and ability to control the risk; and

• the size of the corporation. Generally, there are two types of obligations to which directors and officers are subject: fiduciary duty and the duty to exercise care and skill. Under its fiduciary obligations, a director must act in good faith and in the best interests of the company. The duty of care and skill is based on an objective and subjective test, such that a director’s personal skill and experience will be taken into account, along with that of a reasonably prudent person in the director’s circumstances. Where a director, or an officer acting in a capacity similar to that of a director, breaches one of these duties, the director or officer will be liable. Consequently, where a corporation is liable for failing to take all reasonable steps to ensure the safety of its employees and the public, a director or officer may also be liable. In R v. Fell (1980), 51 C.P.R. (2d) 103 (Ont. Co.Ct), rev’d 131 D.L.R. (3d) 105, 34 O.R. (2d) 665 (C.A.) the Ontario Court of Appeal held that although the actions of the officer were of the corporation at law, the officer was still liable in principal or as a party to the corporation’s offence. For directors and officers of trucking corporations, this means that where the corporation is deemed to violate s. 217.1 for failing to take reasonable steps to ensure the safety of its employees and the public given the risks involved in employing drivers with sleep apnea, it is also possible for the directors and/or officers of the corporation to face sanctions personally for the breach. As mentioned, occupational health and safety is generally regulated by provincial organizations. Bill C-45 does not infringe upon or override any existing federal, provincial or territorial statutes or regulations. It is possible, however, for an employer organization to be charged under a provincial OH&S act as well as the Code. Still, the Canadian government has advised that charges being laid under both the Code and an OH&S statute is unlikely.10 Employers found criminally liable under s.217.1 face fines up to $100,000 for a summary conviction or an unlimited amount for indictable offenses, such as criminal negligence causing death. Indictable offenses are also subject to:

• supervising ongoing compliance measures to protect employees and the public including probational terms;

• a probation order, including an order for the corporate employer to make restitution to a person for any loss and disclose the terms of probation to the public; and

• absolute or conditional discharge to maximum life imprisonment. To date there have only been four charges laid under s.217.111, one of which was dropped, and none of which pertain to accidents caused as a result of an employee’s medical condition. However, it is important for employers to be aware of this legislation and the consequences that stem from it. Given the increase in awareness pertaining to the high occurrence of sleep apnea

10 Bill C-45 Overview. Canadian Centre for Occupation Health and Safety. Online <http://www.ccohs.ca.ohsanswers/legisl/billc45.html> 11 R. c. Transpavé inc., 2008 QCCQ 1598, R. c. Fantini, 2003 CanLII 9591 (QC CS), R. c. Scrocca, 2010 QCCQ 8218

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within the trucking industry, and the safety risks caused by it, it is plausible that any employer that fails to take reasonable steps to address the consequent safety hazards may be subject to criminal charges. C . C i v i l L i a b i l i t y A brief review of the law of civil liability of employers further demonstrates that the issue of sleep apnea is not an issue that employers can afford to ignore in the trucking industry. Sleep apnea is associated with symptoms such as excessive daytime sleepiness, impaired alertness, daytime fatigue, slow reaction time, and vision problems, among other symptoms. What this means in the trucking industry is that employees with sleep apnea may be operating vehicles while experiencing these symptoms, and thereby increasing the risks of accident, injury and possibly death. This in turns creates risks of civil liability for employers arising from those accidents and injuries. First, by permitting an employee with sleep apnea to operate a vehicle, an employer may expose itself to civil liability for breaching its common law duty to provide a safe work environment for its employees and their co-workers. At common law, an employer owes a duty to its employees to provide a safe work environment and to take reasonable care for the safety of its employees. The duty requires that the employer take reasonable steps to provide a system of work that will be reasonably safe, having regard to the dangers necessarily inherent in the operation. Permitting an employee to work who, by nature of his or her medical condition, could reasonably be expected to expose other persons in the workplace to dangerous or unsafe conditions, would likely be a breach of an employer’s duty in this regard. While this area of law has largely been replaced in Canada through statute (namely through worker’s compensation legislation), it is still relevant where due to exemptions under such legislation, an employee is still entitled to sue its employer. Second, an employer may be held liable at common law for the conduct of its employees based on the legal doctrine of “vicarious liability”. Under the doctrine, an employer may be held liable for the tortuous conduct of its employees, without the existence of fault on the part of the employer. The rationale behind the doctrine is that where an employer has created or enhanced the risk of the wrongful conduct of its employees, it is appropriate that the employer or operator of the enterprise be held responsible, even if the wrongful act may be contrary to its desires: Bazley v. Curry, [1999] 2 S.C.R. 534. The effect of the doctrine is to impute liability to the employer, not for its own acts, but for the acts of its employees, committed in the course of their employment. Courts will look at the entirety of the circumstances to determine whether, as a matter of fact, the employee’s tortious conduct was committed in the course of his or her employment. In the context of employees suffering from sleep apnea, the risk for the employer is that they may be liable for the negligent acts of their employees while suffering from the condition. Generally an employer will be found to be vicariously liable for its employees’ negligent performance of acts within the course of their employment. This includes accidents where driving vehicles within the course of employment, where the accident is the result of the employee’s negligence. Case law indicates that while the degree of fault that will be attributed to a driver suffering from symptoms of sleep apnea at the time of the accident will depend on the entirety of the circumstances, and in particular the medical evidence put before the court, there is nonetheless a

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real risk that drivers may be found negligent for accidents related to symptoms of sleep apnea, and that in turn, employers should be seriously concerned about being held vicariously liable for such conduct. For example, in R. v. Spears, [2009] O.J. No. 5648, the accused was charged with criminal negligence in the operation of a motor vehicle causing death. The court found that the evidence indicated his erratic driving which caused by the accident was consistent with severe daytime sleepiness, brought about by untreated chronic obstructive sleep apnea. His conduct was nonetheless voluntary (the judge was not satisfied that his erratic driving was the result of a rare, involuntary, “parasomnic event”), and the judge found he was guilty of criminal negligence. Note that this case was decided in the criminal context, where the standard of proof (beyond a reasonable doubt) is higher than in the civil context (balance of probabilities), which suggests the accused could have also been held negligent in the civil context. Similarly, in a civil case where a fatal accident was caused the defendant driver losing consciousness behind the wheel due to low blood sugar, the driver was found to be negligent (Johnson v. Carter, 2007 BCSC 622). The driver had been a type 1 diabetic for 27 years. The court found as fact that the driver was well aware of his condition and was well aware of the potential loss of consciousness associated with hypoglycaemia. By failing to take the necessary precautions to avoid the possibility of falling into a condition of hypoglycaemia unawareness, the court found that he failed in his duty of care to other motorists and was liable in negligence. In contrast, in R. v. Rockwell, [2004] A.J. No. 440, 2004 ABPCA 54, the accused was acquitted of a charge of dangerous driving, on the basis that the evidence regarding his severe sleep apnea (a condition which the accused was not aware at the time of the accident), raised a reasonable doubt that the accident was not a result of negligent inattention, but inattention caused by severe sleep apnea. In the circumstances the judge was not satisfied that the fault element of the charge had been made out, akin to circumstances where an accident is caused by a sudden and unexpected heart attack, or an epileptic seizure suffered without any prior warning. Finally, employers should also be concerned about potential civil liability in respect of third parties. At common law, an employer will be liable to a third party in negligence where the third party demonstrates that the employer owed him or her a duty of care, that the employer breached that duty of care, and that the third party suffered damage resulting from the breach (see for example, Childs v. Desormeaux, 2006 SCC 18, [2006] 1 SCR 643). Where an employer is in the transport business, there is a strong argument that it is in reasonable contemplation of the employer that carelessness in the operation of its business might cause damage to third parties, including in particular other motorists. In this sense, there is a strong argument, even aside from any of the employer/operator’s statutory obligations, that the employer owes a duty to take reasonable care in the operation of its business to other motorists. Whether the employer has breached this duty and caused damage to third party will largely be a question of fact. For example, in circumstances where the employer knows that one or some of its employees suffer from sleep apnea and that this may have an adverse effect of their driving, but the employer chooses to do nothing about it, ignores the problem or fails to take any remedial action, that employer will likely be exposing itself to direct civil liability. The possibility of employer liability in similar circumstances was left open by the B.C. Supreme Court in Johnson v. Carter, 2007 BCSC 622, referred to above. In that case, the plaintiff also sued the defendant’s employer – Shaw Cablesystems Limited – as the accident occurred during

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work hours. While the issue of the employer’s direct liability in negligence was ultimately moot (the employer conceded that it was vicariously liable to the plaintiff), the plaintiff also argued that Shaw owed it an independent duty of care, as a member of the public, to investigate the risks associated with the defendant’s diabetes, and to monitor the management of his blood sugar levels. The plaintiff emphasized that Shaw was aware of the defendant’s condition, and was also aware that his condition carried a risk of hypoglycaemic, which could impair his ability to operate a motor vehicle. The plaintiff’s argument was that this knowledge gave rise to a duty of care to the public, on the part of the employer, to ensure that the defendant did not put members of the public at risk. The trial judge noted that the argument raised important questions of policy and privacy, as well as employer/employee relations. It was not necessary to resolve the matter, however, as the employer agreed it was vicariously liable. Lastly, it is important for employers in the trucking industry to appreciate that in failing to address issues of sleep apnea in the workplace, they may also be exposing themselves to liability under environmental protection legislation. For instance, in the federal sphere, under the Canadian Environmental Protection Act, S.C. 1999, c. 33 (CEPA), violations of the Act may lead to Enforcement Officers imposing enforcement measures, such as: issuing tickets for offences, issuing orders (such as environmental protection compliance orders or prohibition orders), and even order prosecutions under the authority of a Crown prosecutor for offences under the Act (see ss. 272 and ff). Violations under CEPA resulting in convictions can lead to fines of up to $1,000,000, or even imprisonment. A serious trucking accident that occurred recently in British Columbia provides a helpful illustration of the scope of civil liability, and costs more generally to the employer, as a result of trucking accidents. In early April 2011, a fuel tanker crashed on a major transportation link on Vancouver Island, just north of Victoria. Ministry of Environment officials estimate 20,000 litres of gasoline spilled into the Goldstream River as a result. The RCMP advised that alcohol was “definitely a factor” in the accident and arrested the driver on the suspicion of impaired driving. There is currently a criminal investigation ongoing in respect of the crash. As of June 2011, the RCMP had not yet pressed criminal charges against the driver, as they were reported to be waiting to receive reports from all of the other agencies involved, such as Environment, the B.C. Ministry of Environment, and Worksafe B.C. The potential scope of liability for the fuel company is very broad. Goldstream River is a salmon spawning stream, and the accident is expected to have long-lasting environmental effects on the stream and the species surrounding it. Moreover, the site of the accident is reported to be a long-time spiritual and ceremonial site for aboriginal people, which could potentially lead to civil liability for the fuel company. In early June 2011, the B.C. Ministry of Environment released its terms of reference in respect of the accident, which is a document outlining the responsibilities of the company, Columbia Fuels (and its parent company, Parkland Fuel Corp.), with respect to restoring the Goldstream eco-system. Columbia’s responsibilities include:

• Funding a regime of insect, wildlife and habitat impact assessment;

• Funding a regime of water and streamside sampling for trace fuels; and

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• Upon completion of its obligations, Columbia Fuels must apply for and receive a certificate of compliance from the Ministry.

The company also incurred additional expenses by offering to compensate drivers affected by the lengthy highway closure, and by hiring several environmental response firms to monitor the impact of the spill on wildlife and park habitat.12

I V . H U M A N R I G H T S & P R I V A C Y C O N S I D E R A T I O N S For employers wishing to take action and address the risks associated with sleep apnea in the workplace before an accident occurs, it is important to be aware that there are no legal prohibitions preventing an employer from doing so. Below, we specifically address the application of human rights and privacy legislation, and explain how the standards established in this legislation relate to employer’s efforts to minimize safety risks in the workplace. A . H u m a n R i g h t s L e g i s l a t i o n a n d t h e D u t y t o A c c o m m o d a t i o n While human rights legislation will likely have an impact on the procedures an employer may follow in order to ensure safety in the workplace, it was not intended to prohibit employers from taking action to provide a safe work environment for its employees. Below the following topics are considered: whether sleep apnea, as a medical condition, can ground a claim for discrimination; the duty to accommodate and safety concerns; the accommodation process and medical evidence and treatment.

( i ) P r i m a F a c i e D i s c r i m i n a t i o n a n d S l e e p A p n e a Human rights legislation exists in all jurisdictions across Canada. Such legislation protects individuals from discriminatory treatment on the basis of prohibited grounds. All human rights legislation across Canada lists physical and mental disability as prohibited grounds of discrimination. What this means in the employment context is that an employer cannot refuse to employ (or refuse to continue to employ) a person, or discriminate against a person regarding employment or any term or condition of employment because of physical or mental disability. In order to establish prima facie discrimination, an employee must show that he or she has a physical or mental disability, and that he or she has been disadvantaged by the conduct of the employer, and that the employer’s conduct was based on stereotypical or arbitrary assumptions about persons with physical or mental disabilities (McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4, at para. 53 [“McGill University”]). The case law to date indicates that sleep apnea will likely be considered a disability under human rights legislation and employees who suffer from it will be protected from discrimination in this regard. In Dashwood v. United Steelworkers of America, Local 1-500 (Ellis Grievance), [2007] O.L.A.A. No. 253 (Arbitrator Newman) [“Dashwood’], the arbitrator held that the grievor’s claim that he

12 http://www.bclocalnews.com/vancouver_island_south/goldstreamgazette/news/124427489.html

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suffered from sleep apnea was sufficiently supported by medical information. The Arbitrator was satisfied that sleep apnea amounted to a disability under the Ontario human rights legislation because it was a permanent or ongoing condition or state, occurring as a result of a medical condition, which was serious and had some effect on a person’s life functioning (at paras. 52-59). See also LaFrance v. Treasury Board (Statistics Canada), [2007] C.P.S.L.R.B. No. 32, 160 L.A.C. (4th) 229, where the grievor suffered from severe sleep apnea, which impacted her other health problems and family life. See also British Columbia (Ministry of Competition, Science and Enterprises) v. British Columbia Government and Service Employees' Union (Milliken Grievance), [2004] B.C.C.A.A.A. No. 221, where sleep apnea was one of several health conditions suffered by the grievor. See also Bauer Nike Hockey v. G.M.P., 2004 CarswellOnt 2277, [2004] L.V.I. 3461-1 (Ontario Arbitration Board). Note, however, that proof that the employee suffers from sleep apnea will not be sufficient to establish prima facie discrimination. In Johnson Controls LP v. CAW-Canada and its Local 1859 (G.P. Grievance), [2009] O.L.A.A. No. 266 (Ontario Labour Arbitration, Arbitrator Levinson), the grievor had been diagnosed with Obstructive Sleep Apnea Syndrome. The grievance was ultimately denied and the dismissal of the grievor upheld (he had breached a last chance agreement), on the basis that he had failed to establish a sufficient nexus or link between his disability and his failure to attend work on three occasions during the course of the last chance agreement, which lead to his dismissal. While medical evidence regarding the disorder was tendered on the grievor’s behalf in the course of the arbitration, it failed to indicate when the grievor was diagnosed with sleep apnea, and did not provide specifically what impact, if any, the disorder had on him for any of the days in issue.

( i i ) T h e D u t y t o A c c o m m o d a t e a n d S a f e t y C o n c e r n s Where a standard imposed by an employer, or treatment by an employer, amounts to prima facie discrimination, an employer may justify the impugned standard or treatment by establishing all of the following:

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

(British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), at para. 54, (see also 57-68).

With respect to workplace standards (or treatment of employees) aimed at minimizing safety risks in the workplace, the first step requires that the standard be rationally connected to the performance of the job. The ability to work safely and efficiently is the purpose most often mentioned in the case law (Meiorin, at para. 57). Once this first step is satisfied, the employer must show the second step – that it adopted the particular standard with an honest and good faith

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belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant (Meiorin, at para. 60). Most standards aimed at the elimination or minimization of workplace risks associated with sleep apnea would likely meet the first two stages of this test. It is the third factor – whether the employer has satisfied its duty to accommodate – upon which most cases are ultimately determined. The third step does not require proof that it is impossible to integrate an employee who fails to meet the standard, but proof that it cannot be done without undue hardship to the employer (Hydro-Quebec v. Syndicat des employees de techniques professionelles et de bureau d’Hydro-Quebec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, at para. 12 [“Hydro Quebec”]). Proof of undue hardship can take a number of forms. The court will look at the totality of the circumstances and will apply the undue hardship standard with “common sense and flexibility” (McGill University, at para. 15). Many factors may point to the conclusion that the impact of the standard, while prejudicial, is legitimate (McGill, at para. 15). These include factors such as the cost of possible accommodation measures, the prospect of interference with other employees’ rights, and safety concerns. The scope of the duty to accommodate varies according to the characteristics of each employer’s enterprise, the needs of the particular employees, and the circumstances in which the decision is to be made. In Hydro-Quebec, the Supreme Court of Canada reiterated that the duty to accommodate is “perfectly compatible with general labour law rules” (Hydro Quebec, at para. 19), which can arguably be taken to include an employer’s obligation to provide a safe workplace. The case law indicates that courts, as well as administrative decision-makers, recognize that safety concerns may be a critical aspect of the duty to accommodate analysis. For instance, in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [“Grismer”], the Supreme Court of Canada confirmed that safety concerns may inform every step of the analysis. While this case did not arise in the employment context (but rather in the context of the provision of services – application for a drivers license), the Court noted that where the purpose of a law or standard is to ensure safety (in that case, the goal was to ensure a reasonable level of highway safety), the first step of the Meiorin analysis will be satisfied where the means is tailored to the ends. The Court explained that in the workplace context:

…if an employer’s goal is workplace safety, then the employer is entitled to insist on hiring standards reasonably required to provide that workplace safety. However, the employer is not entitled to set standards that are either higher than necessary for workplace safety or irrelevant to the work required, and which arbitrarily exclude some classes workers…. (Grismer, at para. 21).

The court confirmed that the duty to accommodate does not require employers to lower safety standards for the purpose of accommodation (para. 44). In Grismer, the BC Superintendent of Motor Vehicles cancelled Mr. Grismer’s driver’s license on the ground that his vision no longer met the standard of a minimum field of vision of 120 degrees. While exemptions were permitted in other cases, people with Mr. Grismer’s condition (“H.H.” or

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“homonymous hemianopia” which may eliminate peripheral vision) were not permitted to hold a driver’s license in B.C. The Court agreed with the Superintendent that its goal of reasonable highway safety was legitimate, and that common sense demonstrated that highway safety is indubitably connected to the licensing of drivers, and that such licenses should only be issued to those who can demonstrate a reasonable degree of ability and safety in driving (at para. 28). There was no suggestion that the standard had not been adopted in good faith. The problem for the Superintendent was at the third stage of the analysis: whether the standard was reasonably necessary to accomplish the legitimate purpose. The Superintendent failed to prove that he could not accommodate Mr. Grismer to the point of undue hardship (there was evidence before the Court that at least two tests for road safety for people with H.H. had been developed, and that laboratory testing might also assist). The problem in this case was that the Superintendent simply refused to engage in any kind of individual assessment of persons with H.H., by applying a blanket standard or denying or canceling those person’s licenses. The Court determined this was insufficient because the Superintendent failed to show that individual assessments were unfeasible because they would impose undue hardship (Grismer, at para. 38). More recent case law confirms that safety concerns will be a critical component of the analysis, particularly in the context of safety sensitive workplaces, and that human rights protections do not extend to obligate an employer to permit its employees to put the lives of others at risk (Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426 [“KBR”]). KBR was decided in the context of a human rights challenge to a pre-employment drug testing policy that required pre-employment drug testing for all employees who were offered employment at Syncrude’s plant in Fort McMurray, which was safety sensitive work environment. If the employee failed the test, he or she would not be hired. In rejecting the argument that the policy was discriminatory, the Court of Appeal stated unequivocally:

[36] We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer’s vehicles. Such a policy does not mean that the company perceives all its drivers to be alcoholics. Rather, assuming it is aimed at safety, the policy perceives that any level of alcohol in a driver’s blood reduces his or her ability to operate the employer’s vehicles safely. This is a legitimate presumption. Its goal is laudable since carnage on the highways is a leading, but often ignored, cause of death nearing epidemic proportions. Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic. [emphasis added]

Since its pronouncement, the reasoning of the Alberta Court of Appeal has been applied in a number of circumstances. For example, a justice followed it on judicial review, to set aside an arbitrator’s decision allowing a grievance by an ambulance paramedic who was removed from his position as a result of a condition that affected his visual acuity. The judge overturned the arbitrator’s order that the grievor be returned to his position as a paramedic, despite his inability to meet the vision requirements for a Class F license, which was required for all paramedics by provincial regulation (Simcoe (County) v. Ontario Public Service Union, 2009 CanLII 67661 (Ont Sup. Ct. Div Ct). From Grismer and the case law that has followed it, it is clear that employers may impose standards in the workplace in order to ensure workplace safety, however such standards cannot be imposed arbitrarily.

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In the context of sleep apnea, a policy that imposes sleep apnea testing or screening on all employees will be measured against this standard. The key will be for the employer to show that the testing is linked to legitimate safety concerns, was adopted in good faith, and that the policy or standard has accommodative measures built in to it (such as providing further support, treatment or other accommodation to current employees who suffer from sleep apnea). With respect to particular employees suffering from sleep apnea, the duty to accommodate analysis will likely turn on whether the employee has received treatment for his or her condition, whether the treatment allows the employee to perform the job, and if treatment is unsuccessful whether there is another position the employee can fulfill either temporarily or permanently.

( i i i ) M e d i c a l I n f o r m a t i o n , M e d i c a l T r e a t m e n t , a n d t h e D u t y t o A c c o m m o d a t e

The case law is clear that accommodation is not a one-way street, and that an employee must actively participate in the accommodation process. The employee is entitled to reasonable accommodation, not perfect accommodation, and where the employer makes a proposal within the accommodation process that is reasonable, it is incumbent on the employee to facilitate its implementation (McGill University, at para. 22; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970). With respect to medical information, where an employee claims to have a disability under human rights legislation, the employee must provide the employer with some information to explain the employee’s limitations and the nature of the accommodation sought. Simply alleging that he or she suffers from a disability and requires accommodation will be insufficient. This issue was considered recently by an arbitrator in the Dashwood case, cited above. In Dashwood, the grievor was refused a position where he had a poor attendance record, which had caused great difficulty to the employer when the grievor had performed that position in the past. The grievor suffered from sleep apnea which resulted in higher than average absenteeism rate. The employer began a monitoring program of the grievor’s absences and advised him that his level of absences were unacceptable and if there was a medical reason to advise the employer. The events occurred from 1999 to 2006, but the employee did not mention sleep apnea as the reason for his absenteeism until 2006, when the grievor provided a doctor’s note to his foreman. The arbitrator found that the grievor suffered from a disability, and that the attendance requirement of the position was a bona fide requirement. Ultimately, the arbitrator found the employer did not discriminate nor did it fail to accommodate the grievor. Critical to the arbitrator’s conclusion in this regard was that the grievor, while claiming he suffered from a disability and seeking human rights protection, failed to provide a minimum of sufficient information to explain his restrictions and the nature of the accommodation sought. The arbitrator ultimately dismissed the grievance on the basis that the grievor had failed to provide any meaningful medical information to the employer to understand his condition:

76 Where an employee claims the protection of the disability provision of the Ontario Human Rights Code, or the protection of a parallel provision of his collective agreement, that employee is required to provide a minimum of information to his employer to allow the employer to know that the disability exists. Where accommodation

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is sought, the employee is required to provide a minimum of sufficient information to explain the employee's restrictions, and the nature of accommodation sought. If the employee fails to meet this initial obligation, the allegation of discrimination, and of violation of the collective agreement, cannot succeed.

Further case law has confirmed that the employee has a duty to cooperate with reasonable requests from the employer for medical information necessary to determine what (if any) accommodation is required (see, for example, Dennis v. British Columbia (Ministry of Skills, Development and Labour), [2003] BCHRT 168). Furthermore, an employee’s privacy interests or concerns about keeping medical information confidential do not change the fact that an employer cannot accommodate what it is not aware of: see for example, Kamloops/Thompson School District No. 73 -and- British Columbia Teacher’s Federation, [2005] B.C.C.A.A.A. No. 39 (Arbitrator Burke). Similarly, within the accommodation process, an employer will be required to engage in the process and request and obtain medical information where necessary to facilitate the accommodation process. With respect to an employer’s obligation to obtain or request medical information in the accommodation process, the case law indicates at a minimum, the employer has a duty to inquire. The duty to accommodate requires that the employer engage in an examination of the employee’s current medical condition, the prognosis for recovery, and the employee’s capabilities for alternate work: see, for example, Conte v. Rogerscable Systems Ltd. (1999), 36 CHRRD/403 (C.H.R.T.). This includes a duty to obtain all relevant information about the employee’s disability (where readily available), including information about the employee’s current medical condition and ability to perform job duties: Gordy v. Painter’s Lodge (No. 2) (2004) BCHRT 225. When faced with inconsistency in opinions from the same doctor with respect to accommodation of the grievor’s sleep apnea condition, it is incumbent on the employer to seek clarification (Bauer Nike Hockey, at para. 16). Furthermore, once the reasonable need for independent medical examination is apparent, it is incumbent on the employer to act promptly (Bauer Nike Hockey, at para. 17, 19). In the context of employees suffering from sleep apnea, an employer will likely need to inquire as to whether the employee in fact suffers from sleep apnea, the extent and severity of the condition suffered by the employee, whether there are any prospects for improvement, available treatment options, whether a medical professional can provide a functional assessment of whether the employee is capable of performing his or her position, whether the symptoms are temporary or permanent, and possible suggested accommodative measures. One issue that is likely to arise in relation to accommodation of sleep apnea is whether an employee can be forced to seek treatment for his or her condition. For instance, one treatment for diagnosed sleep apnea is the use of a CPAP or “continuous positive airway pressure” device. It is a machine that delivers air pressure through a mask placed on a person’s nose during sleep. While CPAP is a preferred method treating sleep apnea, some people find it cumbersome and

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uncomfortable.13 For example, the accused in R. v. Spears, [2009] O.J. No. 5648, who was convicted of criminal negligence in the operation of a motor vehicle causing death, reported that after the accident, he was not fully compliant with CPAP. The evidence suggested he was not fully compliant in part by choice, and in part because his device was apparently broken. But could an employer require someone like Mr. Spears to partake in treatment through the use of a CPAP device? The answer is that while an employer would not have any legal basis to force an employee to seek treatment or a particular kind of treatment, refusal to seek treatment by an employee may eventually lead to a finding that the duty to accommodate has been exhausted. In Hydro Quebec, the Supreme Court of Canada recently affirmed that an employer does not have to fundamentally change the nature of the employment contract (including fundamental working conditions), in order to accommodate an employee. The employer only has a duty to arrange its workplace in a manner that enables an employee to do his or her work, so long as it does not impose undue hardship on the employer. The Court explained, at para. 18:

If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory.

Thus if an employer has done all it can reasonably do to accommodate an employee, but the employee has refused treatment, while the employer cannot force the employee to seek treatment, it may be entitled to simply bring the employment relationship to an end. B . P r i v a c y a n d M e d i c a l I n f o r m a t i o n As with human rights considerations, while privacy legislation will impact the process by which an employer goes about ensuring the safety of it workplace and the minimization of risk, such legislation does not prohibit employers from taking proactive steps to ensure safety, and thereby, request relevant medical information from their employees.

( i ) W h a t m e d i c a l i n f o r m a t i o n i s a n e m p l o y e r e n t i t l e d t o ? The case law and commentary in this area make it clear that the extent of the information an employer is entitled to will largely depend on the context in which the information is sought, for instance, whether the purpose is to satisfy the duty to accommodate, deal with absenteeism, or address health and safety issues (see, for example, Lorene Novakowski, “Obtaining Medical Information during the Accommodation Process", Continuing Legal Education Society of BC, November 2007, Human Rights Update; Novakowski, “Privacy Issues in Employment”, Continuing Legal Education Society of BC, May 2007, Labour and Employment Issues; Nancy Trott and Rosalie Cress, “Workplace Privacy”, Continuing Legal Education Society of BC, Privacy Update 2005). In all of these contexts, arbitrators have assessed the question of what

13 Mayo Clinic, information on treatment for sleep apnea: http://www.mayoclinic.com/health/sleep-apnea/DS00148/DSECTION=treatments-and-drugs

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information the employer is entitled to against a standard of reasonableness, having regard to the entirety of the circumstances, and balancing an employee’s right to privacy against management’s right to collect the information in the circumstances. Moreover, arbitrators have restricted the scope of the medical information to which an employer may have access to that which is strictly relevant in the circumstances. It is also well established that employees have a special privacy interest in their personal medical information (see, for example, British Columbia Teachers’ Federation v. British Columbia Public School Employees Association, [2004] BCCAAA No. 177 (Arbitrator Taylor)), as opposed to other kinds of personal information. The use of medical information, and the distribution of such information, must be limited accordingly. Examples of arbitrators applying the reasonableness standard with respect to medical information of employees include the following:

• In the context of drug and alcohol testing, arbitrators have held that demands for an employee to submit to a blood-alcohol test must be reasonable in the circumstances (for example, see Vancouver Drydock Co. v. Marine Workers and Boilermakers Industrial Union Local 1 (Barrett Grievance), [2009] B.C.C.A.A.A. No. 77 (Munroe, Q.C.) [“Vancouver Drydock”). In Vancouver Drydock, the demand for a blood-alcohol test was determined to be unreasonable in the circumstances where the arbitrator found that demand for the test was unreasonable under the explicit terms of the policy, the grievor was not advised of the nature of the test, nor was the grievor advised what would comprise a “positive” test for the purposes of the Policy, and the policy was silent on the effect of an employee’s refusal to take the test. Given that testing, by its very nature, is invasive (in varying degrees, depending on the nature of the test), the Arbitrator was of the view that the employer was obligated to provide more information to the employee (particularly information about the test being demanded) for the demand to be reasonable.

• What kind of testing an employer can subject an employee to will also depend largely on the context in which the testing is sought (in order to determine whether or not it is reasonable). For example in Ocean Construction Supplies Ltd. (Marine Division) v. Canadian Merchant Service Guild (Axsen Grievance), [2005] C.L.A.D. No. 214 (Arbitrator Blasina), the arbitrator found that the employer was justified in disciplining an employee who had been absent for work from two months and who refused to be examined by the employer’s doctor with respect to any matter other than the specific condition for which he had been away, before returning to work. The Arbitrator’s decision that the employer’s request (and subsequent disciplinary action) was reasonable was ultimately based on two factors – the terms of the collective agreement and industrial context in which the circumstances arose. Under the collective agreement, the employer was entitled to confirm that the employee returning from a workers compensation claim was, generally speaking, medically fit to return to work. Moreover, the dispute arose in the context of the marine industry, which is clearly a safety-sensitive industry, in which statutory requirements, by Transport Canada, were imposed with respect to employee fitness. In this context, the employee simply did not have the same privacy entitlements as an employee in another industry.

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The use and disclosure of employee medical information can also arise for employers in the context of arbitration proceedings, as it did in British Columbia v. British Columbia Government and Service Employees’ Union, 2005 BCCA 14. For example, where an employee’s confidential medical records are subject to claims of privilege, the arbitrator may assess, on a case-by-case basis, whether the documents may still be disclosed to the other party, on a partial-privilege basis. Where the privacy claims of the employee are compelling, the arbitrator (or judge) may order disclosure of a limited number of documents, editing by the decision maker of non-essential material, and/or imposition of conditions on who may see and copy the documents.

( i i ) P r i v a c y L e g i s l a t i o n For employers concerned with addressing the risk associated with sleep apnea in the workplace, consideration must also be given to privacy legislation. Privacy legislation governs the collection, use, retention and disclosure of employee personal information, including medical information. Each jurisdiction in Canada has its own privacy legislation. The legislation that applies to federal private sector organizations is the Personal Information Protection and Electronic Documents Act (“PIPEDA”), S.C. 2005, c. 5. It applies to the collection, use and disclosure of employee information by an organization where it is in connection with the operation of a federal work, undertaking or business (s. 4, PIPEDA). For the purpose of referring to the relevant privacy law concepts, this paper refers to the federal legislation, PIPEDA. However, it is important for employers to first determine which privacy legislation applies to their workplace (i.e. which particular federal act or provincial act applies) to know their precise legal obligations. The purpose of PIPEDA is to establish rules that govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that are reasonable in the circumstances (s. 3, PIPEDA). The Act sets out a number of obligations that employers shall comply, which are set out in Schedule 1 to the act. Briefly, these ten principles relate to:

• Accountability (the responsibility of an organization for personal information under its control and for designating individuals who are accountable for the organization’s compliance with these principles);

• Identifying Purposes (the purpose for which personal information is collected shall be identified by the organization at or before the information is collected);

• Consent (knowledge and consent of the individual are required for the collection, use or disclosure of personal information, except where inappropriate);

• Limiting Collection (collection of personal information shall be limited to what is necessary for the purposes identified by the organization, and such information shall be collected by fair and lawful means);

• Limiting Use, Disclosure, and Retention (personal information shall not be used or disclosed for purposes other than those for which it was collected, except with consent or

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as required by law, and should only be retained as long as necessary for the fulfillment of those purposes);

• Accuracy (personal information shall be as accurate, complete and up to date as is necessary for the purposes for which it is to be used);

• Safeguards (personal information shall be protected by security safeguards where appropriate to the sensitivity of the information);

• Openness (an organization shall make readily available to all individuals specific information about its policies and practices relating to the management of personal information);

• Individual Access (Upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information. An individual shall be able to challenge the accuracy and completeness of the information and have it amended as appropriate); and

• Challenging Compliance (An individual shall be able to address a challenge concerning compliance with the above principles to the designated individual or individuals accountable for the organization’s compliance).

Like other privacy statutes, PIPEDA sets out a reasonableness standard. That is, PIPEDA provides that an organization may collect, use or disclose personal information only for purposes that a “reasonable person” would consider are appropriate in the circumstances (s. 4(3), PIPEDA). Personal information is defined broadly as “information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.” Personal information includes “personal health information” with respect to an individual. “Personal health information” is defined in the Act as meaning: (a) information concerning the physical or mental health of the individual; (b) information concerning any health service provided to the individual; (c) information concerning the donation by the individual of any body part or any bodily substance of the individual or information derived from the testing or examination of a body part or bodily substance of the individual; (d) information that is collected in the course of providing health services to the individual; or (e) information that is collected incidentally to the provision of health services to the individual. While generally personal information cannot be collected by an organization without the knowledge or consent of the individual, the Act does provide some exceptions to the general rule. The Act also sets out the circumstances where personal information can be used or disclosed without the consent of the individual. These include circumstances where: the collection is clearly in the interests of the employee and consent cannot be obtained in a timely way (s. 7(1)(a)); or in the circumstances it is reasonable to conclude that collection with the knowledge or consent of the individual would compromise the availability or accuracy of the information and the collection is for purposes related to investigating the breach of an agreement or the contravention of the laws of Canada or a province (s. 7(1)(b)).

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The decisions of the Privacy Commissioner of Canada, in respect of the application of PIPEDA and its principles in respect of employee personal health information is largely consistent with the balancing of interest approach applied by arbitrators described above. For example, in PIPEDA Case Summary #287, the Assistant Privacy Commissioner held that prior to returning the employee to work in a safety sensitive position, the employer was entitled to obtain updated information about the employee’s medical condition. The Assistant Privacy Commissioner did note, however, that the information should not have been sought directly from the physician, but through the employee (January 2005). In PIPEDA Case Summary #135, the Privacy Commissioner confirmed that an employer is entitled to insist on a specific and detailed medical diagnosis where it is necessary in order to reasonably accommodate an employee (March 2003). Similarly, in PIPEDA Case Summary #191, the Privacy Commissioner determined that it was reasonable for the employer to collect personal medical information, including specific diagnosis of disablement, from employees in relation to their sick leave. The Commissioner further determined that the company appropriately identified those purposes for which the personal information was collected, and ensured that no more than was necessary was collected for the fulfillment of that purpose, and that the individual’s consent to the collection had been duly obtained (July 2003).

( i i i ) T e s t i n g a n d M a n a g e m e n t R i g h t s For employers that wish to introduce mandatory sleep apnea testing or screening in the workplace, the above mentioned human rights and privacy principles ought to be considered. Moreover, in the unionized context, it will also be useful to consider the scope of the employer's management rights under the collective agreement. The law is clear that an employer has a unilateral right to adopt workplace rules provided they fall within the analytical framework established in KVP Co. v. Lumber & Sawmill Workers’ Union, Local 2537 (Veronneau Grievance), [1965] O.L.A.A. No. 2 {“KVP”]. That decision holds that the enforceability of such workplace rules depends on compliance with the following criteria: (1) the rule must not be inconsistent with the collective agreement; (2) it must be reasonable; (3) it must be clear and unequivocal; (4) it must be brought to the attention of the employee affected before the company can act on it; (5) the employee concerned must have been notified that breach of the rule could result in his or her discharge if the rule were used as a foundation for discharge; and (6) the rule should have been consistently enforced by the company from the time it was introduced. In labour law circles, the six rules are universally referred to as the KVP rules. Ultimately, the application of the KVP rules to a given situation requires a balancing of interests, namely the employer's interest in ensuring a safe work environment and an employee's right to privacy. For employers seeking to introduce workplace testing or screening for sleep apnea, the case law in this area, and in particular in relation to workplace drug and alcohol testing, is instructive. Specifically, the case law in this area reflects an appreciation that employers have a duty to ensure a safe work environment, and that in safety sensitive workplaces or industries, it is only logical that employers be entitled to take proactive steps to address safety and liability risks before accidents occur.

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For example, recently in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Limited, 2011 NBCA 58, the New Brunswick Court of Appeal considered whether the employer, which operated a kraft paper mill, was entitled to unilaterally adopt a workplace policy which included mandatory and random alcohol testing by breathalyser, for employees holding safety sensitive positions. The Court of Appeal ultimately disagreed with the arbitrator and set aside the arbitrator's decision that the policy of mandatory and random drug alcohol testing was an unreasonable exercise of management rights. The Court of Appeal appreciated that such testing, in an inherently dangerous work environment, protects the safety interests of those workers whose performance may be impaired by alcohol, but also the safety interests of co-workers and the greater public. In so doing, the Court of Appeal indicated that the following factors will be relevant to an assessment of whether an employer's mandatory alcohol testing policy is a reasonable exercise of management rights:

• Is the employer's workplace inherently dangerous? If the workplace is not inherently dangerous, has the employer demonstrated sufficient evidence of an alcohol problem in the workplace before adopting random alcohol testing?;

• Does the proposed method of testing measure impairment and minimize the risk of impaired performance?; and

• How intrusive is the testing method? (the case law indicated that breathalyzer testing was regarded as minimally intrusive).

From this case, and others decided in the context of drug testing policies, an employer deciding whether to introduce workplace testing or screening for sleep apnea, should consider the following:

• Is the workplace inherently dangerous? Alternatively, is there a sufficient problem of sleep apnea in the workplace, or risks associated with sleep apnea, that the employer ought to adopt a policy of sleep apnea testing and screening?;

• Does the proposed method of testing measure whether the individual may be a safety risk on the job?;

• How intrusive is the testing method?;

• Is the employer's proposed policy clear and unequivocal?; and

• Have employees been notified of the policy and the consequences for breaching the policy?

V . C O N C L U S I O N In conclusion, sleep apnea in the trucking industry raises a number of potential liability issues for employers. The case law, however, indicates that that employers can take a proactive approach to reducing these risks. The issue of sleep apnea in the trucking industry also raises a number of practical questions. For example:

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• Can an employer compel a driver to screen and test for sleep apnea?;

• Once a driver is diagnosed with sleep apnea, can the employer compel the employee to use sleep apnea equipment to treat their condition?;

• Is the employer entitled to information from a medical professional regarding the driver’s level of compliance with suggested treatments for sleep apnea?; and,

• Can an employer terminate the services of a driver for failure to use sleep apnea equipment, recommended by a medical professional, to treat the driver’s condition?

The answer to all of these questions will of course depend on the circumstances of the particular case. However, one thing is clear – to the extent that an employer can base its policies or conduct on its safety obligations, broadly defined to include statutory safety requirements, criminal, civil and environmental liability – the more likely it is that a decision-maker will find the policy or conduct reasonable in the circumstances. With respect to compelling a driver to submit to a test for sleep apnea, it is likely that such testing would be permitted where an employer has a reasonable suspicion that an employee suffers from sleep apnea or a sleep disorder, or following a incident on the job (such as an accident), where the employer seeks to investigate the incident. Whether an employer can impose a testing requirement on all employee will depend on the safety risks in the industry, whether the employer can prove sleep apnea is a significant issue in the industry, and the invasiveness of the testing procedures themselves. With respect to compelling a diagnosed employee to use sleep apnea equipment such as CPAP, the answer will likely depend on the safety risk of the particular driver, the medical information about the particular driver’s condition, and the particular driver’s track record. Ultimately, the question will be, do the individual driver’s circumstances support compelling the employee to seek treatment? As discussed in relation to privacy legislation, whether the employer is entitled to information from a medical professional regarding the driver’s level of compliance with suggested treatments will likely depend on the circumstances. The more the driver poses a safety risk to himself and to the public, the more information the employer will likely be entitled to. Finally, where a driver refuses to follow treatment recommendations, and where the individual driver’s circumstances support imposing a treatment requirement, the employer may be justified in terminating the employment relationship. Employers should ensure that their policies in this regard are carefully drafted to comply with the law in this area, and clearly communicate rights and obligations to all affected parties.

THE BRITISH COLUMBIA LABOUR & EMPLOYMENT GROUP Kamloops Corinn M. Bell 250.372.3622 cbell@heenan.ca Kelowna James Jones 403.585.4694 jjones@heenan.ca Vancouver Susan P. Arnold 604.891.1151 sarnold@heenan.ca Kate Bayne 604.891.1163 kbayne@heenan.ca David Borins 604.891.1170 dborins@heenan.ca Dean Crawford 604.891.1162 dcrawford@heenan.ca Rosalie Cress 778.329.9037 rcress@heenan.ca Peter A. Gall, Q.C. 604.891.1152 pgall@heenan.ca Najeeb Hassan 604.891.1164 nhassan@heenan.ca Koml Kandola 604.891.1159 kkandola@heenan.ca Craig T. Munroe 604.891.1176 cmunroe@heenan.ca Donald R. Munroe, Q.C. 604.891.1155 dmunroe@heenan.ca Geoff Plant, Q.C. 604.891.1186 gplant@heenan.ca T. Murray Rankin, Q.C. 778.329.9043 mrankin@heenan.ca Peter R. Sheen 604.891.1154 psheen@heenan.ca Melanie Vipond 778.329.9035 mvipond@heenan.ca Andrea Zwack 604.891.1161 azwack@heenan.ca Victoria John Heaney 250.381.9599 jheaney@heenan.ca Marcia McNeil 250.220.4348 mmcneil@heenan.ca Robert A. VaterLechner 250.381.8153 rvaterlechner@heenan.ca