ILLNESS AND ABSENTEEISM
PART 1: GENERAL ISSUES OF PROOF
Balancing an employee’s privacy interests with an employer’s right to inquire into matters related to absenteeism and sick leave, adopting an incremental approach to employer inquiries to minimize privacy intrusions, the impact of natural justice and the right to a fair hearing on an employee’s privacy, and the consequence of an employee’s refusal to provide confidential information reasonably required by the employer
Defining illness in the context of whether the employee’s condition reasonably required that she be absent from work, the necessity of introducing expert medical evidence at arbitration to establish illness, consideration of various common conditions including jet lag, fatigue, depression, work-related stress, family and other forms of stress, anxiety disorder as contrasted to normal anxiety, self-induced hangover, cosmetic surgery, premenstrual syndrome, psychiatric disorders, continuing pain associated with illness, and the impact of conduct inconsistent with an illness
Issues related to obtaining accurate and objective medical assessments and consideration of factors leading to the provision of questionable medical documentation, including a lack of thoroughness, a reluctance to probe the truth of information or subjective complaints provided by the employee to her physician, advocating inappropriate recommendations arising from an inadequate knowledge of the workplace or the employee’s job functions, failure to consider or distinguish between full recovery and the ability to return to work to perform modified duties, and adoption of an inappropriate advocacy role on behalf of the employee
Factors affecting the validity of an employee consent, refusal of employee to consent, withdrawal of consent previously given, consequences of refusing to or withdrawal of consent, ability of employer to seek information from an employee’s health care providers without her consent, employer communications to physician in the absence of an employee’s consent, and consent to release medical information to a third party for the purposes of benefit administration
Adopting a staged or incremental approach when seeking medical information, the need to raise concerns regarding the adequacy of medical information directly with the provider of that information, reserving the right to require further and better information from an employee’s medical advisors, considering less intrusive approaches suggested by the employee or her union
Underlying evidentiary principles, including proof of illness and entitlement to sick leave, proof of fitness to return to work, proof of fitness to continue at work, proof of fraud or conduct inconsistent with an illness, general issues of onus, the standard of proof, the requirement for corroboration, issues related to the potential for reinjury, the nature of the medical information that can be required, the impact of an employer’s failure to advise the employee of concerns regarding the sufficiency of information that has been provided, and the impact of requesting more information than can reasonably be required
The right to require a medical certificate, establishing the existence of reasonable grounds for requiring a medical certificate, permitted scope of a medical certificate, the requirement for an employer to challenge an inadequate medical certificate in a timely manner, the right of an employer to challenge a physician’s assertions or recommendations
Statutory, contractual, and implied right to require a medical examination, establishing the existence of reasonable grounds for requiring a medical examination, medical examinations by either an employer-designated physician or an independent medical examiner, consequences of an employee’s refusal to undergo such an examination
Basis for an arbitrator to order a medical examination, including consideration of the sufficiency of existing evidence, the right to fairness and natural justice in the context of a full and fair hearing of the matters in issue, the timing of such orders, the right of the employer to choose the examining physician, attendance by others at the examination, payment of costs for such examination
Orders requiring parties and others to produce medical documents, onus as it relates to such production, statutory considerations affecting production, resisting production of privileged medical documents, consideration of recognized classes of privilege (solicitor-client/legal advice privilege, litigation privilege, and communications in furtherance of a settlement) and case-by-case privilege (based on fulfillment of the four Wigmore or common law criteria), modified privilege and possible requirement for limited production of intimate health
documents related to a third-party complainant or other vulnerable person, privilege attaching to internal management or union communications, and loss of privilege
Necessity of calling the maker of a medical report to introduce the report at arbitration, considerations of weight and admissibility, requirement to observe principles of fairness and natural justice, role of related provisions in the various evidence acts, loss of privilege for medical reports tendered pursuant to a procedure set forth in an evidence act, distinguishing hospital records from medical reports,
Application of the relevance and reasonableness approaches to the admission of surreptitious surveillance evidence, legislation and judicial decisions supporting the admission of all relevant evidence, factors underlying the assessment of the two-step arbitral reasonableness test, admissibility of surveillance evidence depicting activities of employees in public areas, admissibility of surveillance evidence provided to an employer by a third party, impact of statutory and contractual obligations on the right to engage surveillance, including consideration of the impact of privacy legislation (including privacy acts, acts dealing with access to and disclosure of personal information, and both the Canadian and Quebéc Charter of Rights), considerations related to tendering and assessing surveillance evidence, identifying a unified approach to meeting statutory and arbitral obligations relating to surveillance issues, and factors to consider when weighing the decision to conduct surveillance
Assessing the medical evidence, retaining a medical consultant, seeking a medical examination by the consultant, obtaining production of medical documents, complying with statutory obligations to provide medical reports, preparing for direct and cross- examinations, examining medical personnel, evaluating conflicting medical evidence, and assessment of credibility
PART II: DEALING WITH DISABILITIES
Defining disability, adoption of a unified, purposive approach despite differing provisions in federal and provincial legislation, exploration of significant case law altering the application of the duty to accommodate, impact of a perceived, as opposed to an existing, disability, the obligation of an employee to advise of the need for accommodation and circumstances where that requirement may be obviated, onus of employee to establish a prima facie case of discrimination, the role of intent in establishing discrimination, the onus on an employer to establish a defence of justification, examination of the principle of proportionality as it relates to the duty to accommodate, the duty to accommodate an employee where discrimination has
been established (but not otherwise), the inadvisability of relying on decisions made by insurers or workers’ compensation boards, the obligation of all parties to engage in a reasonable accommodation process, examination of the concept of undue hardship and the manner in which that concept limits the duty to accommodate, examination of the various factors that may constitute undue hardship, the point in time when undue hardship is to be assessed, an undue hardship for one employer may not be an undue hardship for another, the need for objective rather than impressionistic evidence, the impact in Ontario of statutory provisions that appear to limit the factors that can be considered in establishing undue hardship, the nature of medical information an employee may have to provide in support of a request for accommodation, the continuing nature of the duty to accommodate despite accommodations previously extended, the need to accommodate via the provision of preferential treatment in filling vacancies, the obligation to accommodate employees receiving disability benefits or engaged in workers’ compensation retraining programs, the need to revisit accommodations in light of changed employee or employer circumstances, distinguishing between temporary and permanent accommodation, requirement for training, bundling of duties and modification of existing positions, role of employee preference in meeting the employer’s obligations, suitability of accommodation that results in placement in a lesser paid position, accommodation outside a bargaining unit or at another location and possible retention of seniority for limited purposes, the impact of layoffs on existing accommodations, and consequences for failure to accommodate, including entitlement to general and specific damages
Accommodating addictions and mental illness, the need to establish a disability through credible medical evidence, distinguishing between a disability and substance abuse, considering definitions promulgated by the American Society of Addiction Medicine and by the American Psychiatric Society in its DSM IV diagnostic manual, classic arbitral approaches to mental illness and addiction, including discussion of issues related to concepts of blame and fault, assessing responsibility for improper conduct alleged to be attributable partially to an addiction or mental illness, including the necessity of establishing a causal link to the disability, circumstances where a pure non-culpable approach is mandated, considering the traditional culpable analysis where the disability is considered as a mitigating factor applying only to penalty, exploring the hybrid analysis from British Columbia, consideration of remedial responses that address both improper behaviour and the underlying disability, and considerations in developing a last-chance agreement
Purpose underlying a last-chance agreement, enforceability of last-chance agreements absent human rights considerations, last-chance agreement conditions purporting to bar access to arbitration, agreement terms intended to accommodate addiction-related issues, considering treatment conditions (total abstinence, compliance with treatment and reporting obligations, testing protocols, and termination as the consequence for breach of such conditions) as distinct from ancillary conditions that address workplace issues, weighing the advisability of excusing an initial relapse for alcoholism or drug addiction, fashioning a last-chance agreement to deal with attendance issues, and enforcement of deemed termination and specific penalty clauses where the breach of such clause is attributable to an underlying disability
PART III DEALING WITH ABSENTEEISM
Culpable (blameworthy) absenteeism, including lateness, failure to report to work, failure to return from an authorized absence, absence attributed to, but not justified by, an illness or injury, impact of factors beyond the control of the employee, issues related to the evidentiary onus, failure to return when capable of performing modified duties, use of video surveillance evidence, assessment of activities alleged to be inconsistent with professed limitations, and termination as a prima facie penalty in cases of both dishonesty and improper use of sick- leave and workers’ compensation benefits.
Non-culpable (innocent) absenteeism, including circumstances justifying termination on a non-disciplinary basis, the evolving requirement of having to fulfill the duty to accommodate, benefit considerations that might preclude termination for innocent absenteeism, impact of re- employment obligations set forth in workers’ compensation legislation, and process requirements related to a non-disciplinary termination
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USING THIS MANUAL
This manual is intended for use by employers, unions, and other human resource personnel. It has been written so that it can function on one level as a “how-to” manual, and, on another, as a comprehensive resource that can be used to render advice and prepare for arbitral presentations and submissions.
The manual distils the relevant principles and summarizes the cases from which those principles have been drawn. The principles serve as a starting point, with their application to a particular set of circumstances depending on the underlying facts and, to a certain extent, on an assessment of the competing interests of the parties. The case extracts illustrate the reasoning arbitrators have employed when addressing various interrelated issues. A particular case extract, therefore, may appear in more than one section of this publication.
For ease of reference, an arbitral award, whether issued by a sole arbitrator or a three person panel, has been referred to as the award of the arbitrator who chaired the matter.
The manual is not limited to the prescriptive. The expectation is that by considering the reasoning underlying the various principles, the reader will be able to understand better the approach an arbitrator might take in any particular case.
Every effort has been made to adopt a balanced approach. While the interests of unions and employers often differ, operating from a recognized set of principles minimizes disputes and unnecessary arbitral expenses. It may also minimize the anguish that employees suffer when the parties are litigating issues that might have been avoided or resolved had all the parties had a better understanding of the applicable arbitral principles.
The detail contained in this manual might be seen by some as daunting. Recognizing that possibility, every effort has been made to organize the contents in a manner that will allow the manual to be used in a progressive fashion. All the principles addressed in a particular chapter are set forth at the outset of that chapter. A reader wanting to explore a topic can readily move from the Table of Contents to the appropriate chapter, and then from the Summary of Principles set forth at the outset of that chapter to the specific pages where the principle is discussed.
Many of the principles are interrelated, so that it often will prove beneficial for the reader to begin by reading the entire chapter in which the relevant principle is found. A matter that may appear simple may require further analysis once the balance of the related material has been considered.
The chapter formats are not identical. It was feasible to weave the case summaries into most chapters, but the topics in chapters 8 and 9 (Medical Examinations at the Direction of the Employer and Medical Examinations Ordered by an Arbitrator) were better addressed by summarizing the relevant cases, in chronological order, at the end of each of those chapters. This chronological approach also illustrates the manner in which these two challenging areas of the law have developed.
It is intended that the contents of this manual will be replaced as required. During the intervening period, supplements will be provided to subscribers on the manual’s website and by email. Subscriber input is welcomed, particularly as it relates to website content, suggestions for additional materials, or commentary on any aspect of this manual.
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