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Illness and Absenteeism Newsletter – May, 2012 Edition

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Welcome to the latest issue of our newsletter. You have received this monthly newsletter because you either signed up for our electronic newsletter, purchased a copy of our resource manual, or are engaged in the human resource or labour relations field.

This newsletter addresses illness and absenteeism. It is designed to communicate relevant and timely decisions of interest to human resource personnel, union representatives and labour relations practitioners across Canada. It is written by Denny Kells, author of the looseleaf manual Illness and Absenteeism. Information regarding that publication is set forth at the end of this newsletter.

If you have any questions or suggestions regarding our newsletter, please contact us by e-mailing [email protected].


In this edition you will find…

An update on the printed manual

Good news! The 865 page loose leaf manual has been printed and is being shipped by the printer on May 11. Subscribers will receive an e-mail, prior to that date, setting forth their user name and password. This will allow subscribers to access the expanded case summaries and the on-line Manual Supplement that is updated monthly.


Feature Article

The Obligation to Provide Evidence of Illness

This article summarizes the general arbitral law regarding an employer’s entitlement to insist on the provision of medical evidence to support a claim of illness.

Non-unionized employees are subject to the terms of a written or oral individual contract of employment (as distinct from the terms of a collective agreement). Their contract, which is generally subject to common law principles, may or may not incorporate relevant aspects of their employer’s illness or absenteeism policies. As with unionized employees, they are protected by human rights legislation and in most instances, some form of privacy legislation. Although the common law has not developed to the same extent as the arbitral law, a prudent employer should treat unionized and non-unionized employees in a similar fashion when it comes to requiring them to provide what would normally be considered to be confidential medical information.

Unless otherwise modified by the terms of a collective agreement, a unionized employee who claims to have been ill bears the onus of establishing that her absence was justified. This normally will require more than a simple assertion of illness; for corroboration is generally required to justify an absence alleged to be attributable to illness.

The nature of the corroborative evidence may depend on the underlying circumstances and the length of the employee’s absence. It may also depend on other factors such as the employee’s pattern of absences, or in some cases, the need may be reinforced by conditions the employer reasonably imposed to address continuing issues arising from the employee’s absenteeism.

While arbitrators have for the most part accepted that corroboration is generally required, they have recognized that it may not always be available, and that circumstances may render it unreasonable to expect that the employee would have sought medical corroboration of her illness. In these instances, the arbitrator must adjudicate the claim by determining whether some form of corroborative evidence could or should have been obtained. The employee’s uncorroborated assertion of illness will then be evaluated in the context of her overall history and the credibility of her testimony. In the final analysis, the arbitrator will determine whether the employee’s bare assertion of illness was, in the circumstances, and on a balance of probabilities, sufficient to establish that she was ill on the dates in question.

It has generally been accepted that employees have a right, or at least an expectation, to privacy. The right or expectation is not absolute but must be balanced with the employer’s need to know. This balancing requirement is most often addressed by considering the degree of privacy incursion that was reasonable in the circumstances. The scope of the information that is required may differ depending on the nature of the issue being addressed.

Even in the absence of an entitlement in a collective agreement, an employer may require an employee to produce a medical certificate or other medical documentation where such is reasonably necessary. The source of this entitlement usually is considered to be either an inherent right of management or an implied term of the collective agreement.

Absent some form of reasonable suspicion regarding the legitimacy of an employee’s absence, the right to require proof of illness may be impacted by the provisions of the collective agreement. For instance, a collective agreement limitation addressing the need to provide medical evidence after an absence of three days would normally restrict the employer’s right to require proof for periods of less than three days. An established employer practice may also have a similar impact. Nevertheless, those limitations will not prevail when the employer has a reasonable basis to question the legitimacy of the employee’s absence.

Again, these general propositions are qualified by the purpose for which the information is sought. A collective agreement limitation addressing proof of illness is unlikely to prevail where the information is reasonably sought for some other purpose. Those other purposes might include a requirement to address entirely distinct issues such as fitness to return to work, accommodation, and prognosis for regular ongoing attendance.

In the case of illness, an employer generally has the right to compel the production of sufficient information to determine if the employee’s absence was justifiable. In instances involving sick leave and sick pay, this may include routine information as to the nature of the illness or disability (but not normally the diagnosis), the prognosis, if any, and the length of the employee’s absence.

The classic statement of the employer’s entitlement was set forth in a 1990 arbitral award:

In the context of the benefits of sick leave and sick pay, an employer is entitled to require the employee to provide sufficient information to permit it to satisfy itself that a particular absence was for a bona fide sickness or disability. How searching that inquiry can become is a function of the particular facts. The inquiry must be reasonable. Where sick leave and sick pay are addressed in the collective agreement, the inquiry must be in accordance with the provisions of the collective agreement.

The arbitrator stated that in the context of the collective agreement at issue

[The employer] is entitled to require all employees to provide particulars of each absence attributed to illness or disability. Whether the information which is provided will be sufficient will depend on the particular facts. Certainly there can be no objection to routine information as to the nature of the illness or disability, the prognosis, if any, and the expected date of return of the employee. Generally, the employer is entitled to require all the information necessary to equip management to determine whether the illness or absenteeism is bona fide and what impact it will have on the attendance of the employee.

These statements have generally been accepted by other arbitrators as a proper statement of the law.

More recently, a respected arbitrator summarized the arbitral law in the following terms:

In accordance with the authorities, the employer is entitled to information appropriately identifying the employee and indicating when he or she was seen by the doctor in relation to the particular illness for which the benefits are being claimed. The employer is not, again in accordance with the authorities, entitled to a diagnosis in order to qualify for benefits unless the collective agreement or an applicable statute otherwise provides. The employer is only entitled to information about the specific absence for which benefits are being claimed and that information is to be provided by the doctor who examined the employee and who is substantiating the legitimacy of the illness. The employer is entitled to know when the employee is expected to return to work and what, if any, restrictions apply upon his or her return

… In some situations, determined by an objective and reasonable assessment of individual cases, the employer may be entitled to further information. Follow-up requests for further medical information is not prohibited; indeed, in some cases, it will be necessary and entirely justified. Quite clearly, there is a continuum of appropriate medical information in which the obligation to provide more detailed medical information will increase, for example, as absences increase.

Despite a recent decision that suggested otherwise, the “mere fact that providing the reason (i.e. the nature of her illness or injury) will reveal otherwise confidential medical information does not excuse the employee from providing the reason in order to satisfy the onus on her to justify her absence and claim for benefits even in the first instance.”

An employer can, where appropriate, challenge the sufficiency of an employee-tendered medical certificate. Similarly, it can also refuse to honour an employee’s claim for sick leave where the claim has not been properly supported by medical evidence. What the employer cannot do, except in very limited circumstances, is to discipline an employee for having failed to provide the requested medical information. Where an employee fails to comply with a reasonable request, she might suffer an adverse financial or non-monetary impact. This might include loss of income-protection benefits or a justifiable refusal to permit the employee to continue at, or return to work, following an injury.

The June edition of this newsletter will expand upon the foregoing. Included will be commentary addressing

  • the necessity of adopting an incremental approach to seeking medical information;
  • the scope of a proper consent or medical release;
  • steps that can reasonably be taken to challenge the sufficiency of any medical information that has been provided; and
  • the somewhat unique arbitral proposition that limited or cursory medical information may be sufficient to justify an employee’s claim where the employer fails to seek clarification or additional information on a timely basis.

A discussion of the arbitral law supporting all of the propositions discussed in this and other editions of the newsletter can be found in the subscriber manual and the monthly subscriber manual updates.

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Recent Decisions of Interest

Expanded case summaries of the following decisions of interest are available on line to subscribers of Illness and Absenteeism: A Manual for Human Resource Personnel, Union Representatives and Labour Relations Practitioners.

  • An employee who was found to be “nesting” on the job (i.e., having purposely set out to sleep) was reinstated with a “time-served” suspension in place of the termination, with the result being that the termination was converted into a 16 month suspension without pay.
  • An employee who had resigned due to illness was subsequently reinstated on the basis that she did not have the requisite intention to resign. In coming to that conclusion, the arbitrator commented that “when the disability is pivotal to the resignation, the employer has an obligation to accommodate rescission of the resignation when it is obvious there was no real intent to sever the relationship. First creating (or contributing to) the reason for the resignation, and then holding firm on acceptance of the objective resignation, is not accommodating the disability.”
  • An employee who removed money from the employer’s cash register was terminated and then subsequently reinstated pursuant to a last-chance agreement. Rather than return to work as agreed, the employee advised the employer that he was recovering from leg surgery. When the employer discovered that the employee had been lying, he was terminated for dishonesty pursuant to the provisions of the last-chance agreement. The union, for its part, contended that the enforcement of the last-chance provision would amount to discrimination based upon a mental disability.The arbitrator accepted that the employee suffered from an “adjustment disorder” that constituted a handicap. He rejected the union expert’s diagnosis of a dysthymic disorder and generalized anxiety disorder. The union’s medical expert was found to have lacked objectivity, and his diagnoses did not meet all of the definitional elements of the DSM (the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders; most often referred to as the DSM-IV, i.e., the fourth edition).The union contended the grievor’s misconduct was linked to his adjustment disorder (i.e. the disability) in two respects. It contended the employee suffered from a cognitive impairment that adversely affected his ability to make sound decisions, and further, that the stigma associated with mental illness led the employee to fraudulently assert a physical incapacity. Both were rejected as constituting a significant cause of the employee’s dishonest conduct. The termination that flowed from the last-chance agreement was upheld.
  • The termination of an employee who had threatened a supervisor and three co-workers was upheld. The arbitrator concluded that while the employee suffered from a mental disorder (a bipolar manic condition), his handicap was not a causal factor in his improper conduct. There was no compelling medical evidence to support a claim of diminished responsibility.
  • An arbitrator upheld the termination of an employee who had refused to undergo random testing for drugs and alcohol as required under a form of last-chance agreement that was negotiated to address his addictions. The random testing clause was found to have been “a bona fide and reasonable requirement in the circumstances.” There were no factors to justify the employee’s refusal to undergo the testing. Moreover, the employer’s actions in having accommodated the employee on many occasions led to the conclusion that the employer had accommodated the employee to the point of undue hardship.
  • An employer’s refusal to permit an employee to return to work was upheld on the basis that the employee (who became aggressive and violent without warning), continued to be a danger to himself and others. That conclusion was reached after considering the findings of an Independent Medical Examination that had been ordered by the arbitrator. The arbitrator set forth a fourfold test for determining the limit of “reasonable” accommodation in a matter such as this.
  • A union’s request for production of a broad range of documents was denied where its primary purpose was to challenge the “accuser’s” veracity. The arbitrator rejected the broad approach that had earlier been taken by arbitrator Shime (that is, a requirement to disclose all documents in a party’s possession or control except those which are privileged or clearly irrelevant). Adopting a more conservative approach, the arbitrator rejected all but one of the union’s production requests; primarily on the basis that they either constituted a “fishing expedition”; were totally devoid of any form of particularity; would have resulted in the disclosure of the names of other youth who were being held in the Centre; or lacked any arguable nexus between the information sought and the matter ultimately to be determined.
  • An arbitrator held that an employee who was accommodated in his former classification was entitled to be credited with classification seniority equivalent to his plant-wide seniority. This was done without considering whether that was necessary to effect a reasonable accommodation. As a consequence, the accommodated employee was vaulted from fourth to first in terms of seniority in the department to which he was returned. Of interest is the fact that it was plant wide rather than classification seniority that governed in instances of workplace reductions.

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About Illness and Absenteeism

Illness and Absenteeism.com is published monthly. It highlights recent cases addressing matters included in Illness and Absenteeism: A Manual for Human Resource Personnel, Union Representatives and Labour Relations Practitioners. Both are published by Dunlop Publishers (Canada) Ltd. and both are authored by Denny Kells.

The manual is available as an annual loose leaf subscription. Its unique format identifies each of the governing principles and then provides the reader with discussion and case excerpts that inform the principles. The manual addresses all aspects of illness and absenteeism. It also includes an extensive chapter focusing on the duty to accommodate employees absent because of illness or injury. Included as well are chapters dealing with pre-hearing production of medical documentation, introducing medical evidence at arbitration, arbitrator-ordered medical examinations, overview of federal and provincial privacy legislation (including the Charter, PIPEDA and similar statutory provisions), the admissibility of surveillance evidence, establishing the case at arbitration, assessing credibility and weighing conflicting medical opinions, addictions and mental illness, last-chance agreements and deemed termination provisions, culpable or blameworthy absenteeism and circumstances justifying termination for non-culpable or innocent absenteeism. Some chapters are supported by a checklist designed to assist in assessing the workplace issue in the context of the stated principles.

To subscribe to the manual or this newsletter, or to review an in-depth table of contents and a sample chapter, go to www.illnessandabsenteeism.com, or [click here].