In Canadian Bank Note Co. (2012), 222 L.A.C. (4th) 293 (Surdykowski), the arbitrator considered whether the employer had the “right to require employees who are absent for more than three consecutive shifts to submit a completed ‘Medical Certificate of Disability’, and the extent of the information, if any, that employees can be required to provide in that respect.” The certificate requirement was not set forth in the collective agreements but rather was invoked as part of a newly implemented Health and Disability Management program. The collective agreements obligated the employer to provide a short term disability program, with benefits to commence on the third consecutive day of absence. That program was self-funded.
The program required that employees who were absent for more than three consecutive shifts were to submit a completed certificate to a third party retained by the employer. The primary role of the third party was to advise on whether an absence was medically supported. The program stipulated that an employee who failed to submit the required certificate was to be notified in writing that the certificate must now be filed within a further 14 days. Where that requirement had not been met, the employee was to be provided with a further written notice that such certificate must be filed within the following 14 days, failing which the employee’s absence would be considered to be “unsupported and the employee will be required to enter into a repayment with respect to the wages advanced during the period for which the employee had claimed sick leave benefits.”
In considering the role of the third party administrator, the arbitrator stated that
an employer’s right to use a third party administrator or assessor for such purposes (i.e. evaluating benefit claims) (in the absence of a collective agreement prohibition) is well established… As a general matter there is nothing to prevent an employer from contracting out … the functions of gathering or assessing medical information. However, the party to whom the employer delegates this function stands in the shoes of the employer and has no greater right to or need for information than the employer has if it performs the functions itself. The employer is also responsible for the conduct of that third party in the same way it would be if it performed the function(s) itself.
In considering the employee’s obligation to attend at work, arbitrator Surdykowski stated:
Employees are obliged to attend work regularly as scheduled, and to provide notice of and a legitimate excuse for any otherwise unauthorized absence from work in accordance with the collective agreement, or as reasonably necessary if the collective agreement is silent. Whether or not sick leave or other benefits are available, or the employee elects to forego such benefits, an employee who is absent from work without prior authorization must comply with a collective agreement requirement, or a reasonable employer request not prohibited by legislation or the collective agreement to provide a satisfactory explanation. In the case of an absence due to illness or injury, the employee must also provide satisfactory supporting medical information as specified by the collective agreement or reasonably necessary to justify the absence or entitle the employee to collective agreement sick leave or other benefits. The employer has both a legitimate interest and the statutory obligation to facilitate as early a safe return to work as possible, with appropriate accommodation to the point of undue hardship if required …
In the absence of a collective agreement provision which specifies otherwise an employee who does not attend work as scheduled is not entitled to wages, or to sick leave or other benefits. Sick leave benefits are available only to the extent that a collective agreement so provides, and an employee who seeks such benefits is obliged to produce the objectively satisfactory proof of entitlement as required by the collective agreement or otherwise reasonably necessary and not prohibited by statute or the collective agreement. An employee who fails to provide required or reasonably necessary justification for any unauthorized absence may be subject to discipline in that respect, or may be denied sick leave or other benefits. Indeed, the employer may not be obliged to continue to employ an employee who repeatedly fails to attend work as scheduled without reasonable justification, or who has reasonable justification (i.e. innocent absenteeism) but is unlikely to be able to attend work with reasonable regularity in the foreseeable future even with accommodation.
Arbitrator Surdykowski commented that unless fettered by legislation or the collective agreement
An employer has the management right to implement workplace management policies, including policies concerning attendance and absenteeism management. An employer has the management right to question suspicious absences or information provided by an employee to justify an unauthorized absence. So long as it does not constitute harassment, it is not unlawful for an employer to ask an employee for personal medical information in accordance with legislation and the collective agreement for legitimate workplace management and absenteeism control purposes.
In addressing the nature of the information that must be provided, the arbitrator stated:
The employer can require an employee who has been or is absent from work to provide proof that the employee was or is legitimately unable to attend work due to illness or injury sufficient to justify the absence or entitlement to sick leave benefits. In the case of an ongoing absence, the employer is also entitled to an indication of when the employee is likely to be able to return to work safely, and in appropriate circumstances to any restriction or accommodation that may be required in that respect.
… The employee privacy right which attaches to confidential medical information is not absolute. The fact that medical [information] is prima facie private and confidential does not mean that it never has to be disclosed.
Whether or not and the extent to which such information must be disclosed depends on the circumstances (including the legislated or collective agreement requirements or prohibitions) and the legitimate purpose(s) for which the information is reasonably required. The sensitivity of confidential medical information is such that a conservative approach to required disclosure is appropriate. The least intrusive non-punitive approach which balances the employer’s legitimate business interests and the employee’s privacy interests is required. Regardless of the bona fides of the employer’s concerns or desire to assist the employee, in the absence [of] permissive statutory or collective agreement provisions the employer is entitled to no more than the reasonably necessary information to establish that the employee was or is unable to work because he was or is ill or injured. Legislation and the provisions of the collective agreement in that respect will both be strictly construed in that respect.
There are strict limits to the extent to which an employer can require an employee to produce confidential medical information. The employer can only require such information to be produced to the extent specifically permitted or required by legislation or the collective agreement, or reasonably necessary for a legitimate purpose in the circumstances. So long as the collective agreement does not conflict with the applicable legislation, the nature and extent of the confidential medical information that a bargaining unit employee can be required to produce is determined by the requirements, permissions or restrictions found there. To the extent that the collective agreement is silent, the test is reasonable necessity, as informed by legislation and the provisions of the particular collective agreement.
Most modern collective agreements specify whether, when or in what circumstances an employee must provide medical evidence to justify an absence or access to sick leave benefits, but even if the collective agreement is silent the employer may be entitled in the first instance of every case to require sufficient medical information reasonably necessary for the purpose (i.e. to justify the absence, or access sick leave benefits). Unless the collective agreement specifies otherwise, an employer is obliged to exercise discretion in that respect: that is, the employer must consider and assess the information available without a medical certificate and determine whether one is reasonably required in the circumstances.
In this jurisdiction, an employer bound by a collective agreement retains all of the management rights that a non-union employer has except to the extent that those management rights are fettered by the collective agreement, either expressly or by necessary implication – whether or not the collective agreement contains a management rights provision. However, neither a “boiler plate” management rights provision, nor the residual management rights theory entitles the employer … to demand even a first instance medical certificate in every case, without assessing whether one is reasonably necessary in the circumstances.
In that respect, the jurisprudence recognizes that it is not always medically necessary for an employee to seek medical attention for a minor illness or injury which may nevertheless render him incapable of attending work. In such circumstances, it is generally inappropriate to vex the employee and burden our already overloaded medical health system with a petty demand for a medical certificate. A 1-day absence of a rarely absent employee due to the common cold is but one example of such an ailment (although in most such cases the minor illness or injury [is] readily apparent either before the absence or when the employee returns to work). In the absence of a collective agreement requirement it is generally considered unnecessary, inappropriate and impractical to require every employee to do so in every case in the first instance.
Even where the collective agreement requires an employee to produce or permits the employer to require the employee to produce a medical certificate, what exactly is or may be required of an employee in that respect depends on the language of the collective agreement strictly construed. What is required in the first instance by the test of [reasonable] necessity is the minimum sufficient objectively reliable information necessary to satisfy a reasonable employer that the employee was or is in fact absent from work due to illness or injury, and is entitled to any collective agreement benefits in that respect.
In restating the type of medical information that may be required, the arbitrator stated:
Unless the collective agreement provides otherwise, it is not inordinately invasive for an employer to ask for a medical certificate which includes the reason for the absence in issue (consisting of a general statement of the nature of the disabling illness or injury, without diagnosis or symptoms), that the employee has a treatment plan and is following that plan (but not the plan itself), the expected return to work date, and the work that the employee can or cannot be expected to perform upon his return to work. As a general matter, unless the collective agreement specifies otherwise or there is reasonable cause to doubt its bona fides, such a document completed by an appropriate medical health professional constitutes prima facie proof which satisfies the employee’s first instance reporting obligations for absence and sick leave benefits purposes. Although it can ask, in the first instance the employer cannot require an employee to consent to a release of the employee’s general medical history, a diagnosis, a treatment plan (as distinct from the fact that there is one and that it is being followed), or a medical prognosis other than an expected return to work date and potential restrictions. The fact that providing the nature of [an] illness or injury may suggest a diagnosis or medical history does not excuse the employee from providing the reason in order to satisfy the onus to justify the absence or claim benefits even in the first instance.
The limits on the employer’s right to confidential medical information in the first instance do not prohibit the employer from subsequently requiring further relevant and appropriate information when required in a particular case because the first instance information is insufficient or the absence is suspicious, or if accommodation is required or the employer has a reasonable concern for the safety of a returning worker or other employees. However, an employer which seeks diagnostic or other additional confidential medical information must demonstrate a legitimate need for [such specific] information on an individual case-by-case basis.
Accordingly, in the absence of specific collective agreement authorization the scope of a “one size fits” all first instance medical certificate of disability form for absence or STD benefit purposes must generally be limited. The consent or authorization to release confidential medical information should be limited to the release of the specific absence and confidential medical information reasonably required for the purpose, and it should identify and be limited to the medical health professional or information custodian being asked to provide the medical information. A first instance consent for STD or other benefit purposes should not include return to work accommodation considerations other than whether there are likely to be restrictions on the anticipated return to work date. Further, the confidential medical information that the employer can require the employee to provide should not be mixed together with the information that the employee can be asked to volunteer in the same form, or at least not in the same section of the form. If a single form is used, it must clearly distinguish between the information that is required (i.e. what information the employer or its agent is entitled to) and the information that the employee is being asked to volunteer (i.e. what information the employer or its agent would like to have if the employee is willing to allow the employer to have it). And there must be no suggestion that the employee might be prejudiced if he fails to provide voluntary information.
An employee cannot be required to sign a forward-looking consent that may exclude him from the confidential medical information loop. A consent which purports to do so or which gives … the employer prospective permission to access an employee’s confidential medical information is prima facie inappropriate, particularly where the consent purports to permit the employer to initiate direct contact with a doctor or other custodian of confidential medical information without notice to the employee. Although I wrote in Hamilton Health Sciences Corp. (and in Providence Care Mental Health Services) that a separate consent should be required for every contact, I am now persuaded (by Central Care Corp., at paragraph 38) that a separate consent is not required for every communication with the specifically identified medical health professional identified in the consent. However, every contact with the medical health professional should … be with prior notice to the employee of the intended contact and its purpose, and be limited to what is reasonably necessary in the circumstances.
In addressing whether a medical inquiry can serve more than one purpose, arbitrator Surdykowski commented that
…it is permissible for an employer to ask for confirmation that the employee is unable to do his job … for the multiple purposes of confirming the legitimacy of the absence and the entitlement to sick leave benefits … It is also permissible for an employer to ask about the employee’s expected return to work date and potential restrictions (i.e. the work the employee can or cannot be expected to perform upon his return to work) in a first instance medical certificate form of general application as part of a general prognosis entitlement. This is consistent with the employer’s obligation to facilitate as early as possible [a] safe return to work with any necessary accommodation and provides an appropriate “heads up” to the employer in that respect. Although [one of the questions] pushes the permissible envelope in that respect, it appears to ask for a general indication of functional restrictions for return to work purposes, as opposed to the much more detailed functional abilities evaluation forms that are typically required for accommodation purposes when the employee is actually ready to return to work. However, it is appropriate that the general nature of the information required be emphasized.
The arbitrator then ordered that the wording in the employer’s form be amended to read “Please outline, in a general way, your patient’s functional capacity …” However, he directed that the sentence “Please provide any other pertinent details about the return to work plan” be deleted because it both prematurely suggests that a return to work plan is necessary, and fishes for information not necessary for first instance purposes.”
He considered that
It is legitimate for an employer to ask whether the employee may be off longer than expected for the reported injury and whether that is because of complicating factors. The question does not ask what those complicating factors are, and it is that and not [the] fact that they exist which might be revealing of medical history.
In a concluding observation, arbitrator Surdykowski commented that the medical information is that of the employee and that
in other than emergency situations any such custodian must have the person’s express voluntary informed written consent before they can either use his/her confidential medical information for any purpose other than the purpose for which it was obtained or provided, or disclose it to anyone else.