Illness & Absenteeism - March 2021 Newsletter
Welcome to the March, 2021 issue of the Illness and Absenteeism newsletter. In this issue, you will find:
A. Featured Case:
An employer was required to pay for the cost of medical certificates that had been unreasonably requested. [click here to read more]
B. Other Decisions of General Interest
- Given the continuing pandemic uncertainties, and the growing acceptance of virtual hearings, the presumption in favour of such hearings is likely to continue to apply for some time. [click here to read more]
- The termination of an older employee who frequently fell asleep while monitoring the operation of mechanical equipment was found to have been excessive. Arbitrator Knopf found that the employee was no longer suitable for the position, and as a consequence, ordered that damages be paid in lieu of reinstatement. [click here to read more]
- An employer was found to have discriminated against a longer-term employee after its manager assigned some of that employee’s hours to two newly hired employees who were of the same ethnicity as the manager. [click here to read more]
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A. Featured Case
In Toronto District School Board, 2020 CanLII 103771 (ON LA) (Stout), the arbitrator considered whether the employer had violated its collective agreement “by unreasonably requiring employees to submit medical certificates and medical information beyond what was required or permitted by the collective agreement, without justification and without paying the costs of obtaining such medical certificates.”
At the heart of the dispute was the union’s objection to the employer’s “requirement that employees provide a Functional Abilities Form (FAF) and/or a Cognitive Functional Abilities Form (C-FAF). The employer contended that it was entitled to the information found on the FAF and the C-FAF in situations where the employee has not provided any information beyond a “cursory note” indicating absence due to “medical reasons or complications”. The employer insisted that the medical information that it sought was reasonable and necessary to the proper administration of the employer’s “Sick Leave Benefit Plan”.
The evidence established that the employer had a long standing practice of not paying for any medical notes or forms to substantiate an illness, or to establish entitlement to the payment of benefits under the Sick Leave Benefit Plan, or where required to support a request for accommodation, and that it was only on rare occasions where a separate letter was sent out to a treating physician asking for specific questions to be answered would consideration be given to paying for medical documentation.
In upholding this aspect of the grievance, arbitrator Stout stated:
While the employer may not be obligated to pay for medical documentation under the collective agreements, “that does not mean that an arbitrator cannot order the [employer] to pay for medical documentation in appropriate circumstances. In my view it is open for an arbitrator to order reimbursement for medical documentation requested by [the employer] that is found not to be reasonably necessary to the administration of the Sick Leave Benefit Plan. In such circumstances the arbitrator is not amending the collective agreements. Rather the arbitrator is exercising the broad inherent jurisdiction to grant a remedy to place the employee in the position they would have been had [the employer] not violated the collective agreement by making an unreasonable request for additional medical information.
In that same decision, the union had contended that it was unreasonable for the employer to require medical documentation in the case of a one day absence. In support of that position, the union had tendered an expert medical opinion from a physician who was trained in family medicine and had practiced as a full time emergency physician for the past 12 years. He was also an Assistant Professor at the University of Toronto in the Department of Family and Community Medicine. The opinion stated:
- It is a fundamental concept of public health that people with minor illnesses stay home, both so that they can recover and so they do not expose others to infection.
- Enforcing sick note requirements for minor illnesses results in one or two outcomes: either sick workers go to a doctor’s office for the note or they just go to work.
- Requiring sick and contagious patients to obtain a note introduces a risk of exposure to providers.
- In conclusion, it is my professional opinion that sick notes for minor illnesses are harmful for workers health, workplace health and the healthcare system. This is based on medical evidence and is consistent with an evolving consensus across medical organizations provincially and nationally, who not only oppose sick notes but have supported initiatives to remove them.
Arbitrator Stout stated that while he agreed with the statement that that sick notes should not generally be required for minor illnesses such as the flu, there was another aspect to consider:
… It has been my experience and well documented in many arbitration decisions that there exist certain individuals who take advantage of sick leave benefits to take a day off work for reasons unrelated to illness or injury. It is not uncommon for employers to impose a requirement to provide a sick note to verify the validity of an absence in situations where they have cause to be concerned about the legitimacy of an absence, abuse or misuse of sick leave benefits. The requirement to provide a sick note acts as a disincentive or deterrent to those employees with an established pattern of excessive absenteeism who may wish to take a day off for less than legitimate reasons.
The arbitrator stated that the test to be applied is a balancing of interests based on “objective reasonableness.” This proportionality approach of balancing the interests’ of employee privacy rights and management rights, based on objective reasonableness, is well entrenched in the case law. Common to most if not all sick leave benefit plans are a requirement to provide proof of entitlement. He commented that the proof necessary to establish entitlement may vary based on the language in the collective agreement, although proof will not normally be required for a brief absence
In this case, arbitrator Stout found that the Functional Abilities Form was acceptable but that the Cognitive Functional Abilities Form was not, for the latter form required information that went beyond that which was provided for in and required to administer the collective agreement.
An employer’s entitlement to require and to pay for a medical certificate are considered in Chapter 7 of the Illness and Absenteeism manual and its supplement.
B. Other Decisions of General Interest
In BCPSEA/SD No. 68, 2020 CanLII 89909 (BC LA) (Rogers), the union sought to have the hearing proceed virtually, while the employer sought to have it proceed as an in-person hearing. The arbitrator cited with approval the approach of arbitrator Luborsky in Hamilton, 2020 CanLII 59546 (ON LA) (Luborsky), where he concluded that the presumption in favour of virtual hearings would continue to apply even where in-person hearings were strictly possible while adhering to safety protocols. He stated:
Therefore as the economy is anticipated to slowly reopen over the next several months and into next year, but will likely experience setbacks along the way, it is appropriate in the interest of expedition and to reduce unnecessary conflict, to continue with the presumption that arbitrations will proceed using a form of remote attendance through videoconferencing or other suitable Technologies, unless the parties otherwise consent to an in-person hearing. The presumption is subject to rebuttal by an objective party that must show compelling reasons justifying a contrary result, to be assessed by considering the interests of the parties, including the need to maintain the essential integrity and fairness of the hearing process having regard to the particular facts and circumstances of each case.
In concurring with the foregoing, arbitrator Rogers stated:
No one, in my view, should be required to attend an arbitration hearing in a public venue without their consent where remote attendance is a reasonable alternative given the uncertain and unhealthy environment that exists because of the pandemic. This is especially so, given that counsel and participants are often required to travel in order to attend in-person hearings, an activity we are being told ought to be curbed to the greatest extent possible.
… Consistent throughout all of the case law is that a balancing of principles is required when determining the appropriate venue and procedure for a hearing and that the appropriate balance of interests must be assessed on the unique and individual circumstances of each case. The outcome will vary based on the independent weighing applicable … Where there is a viable alternative to assembling individuals, unnecessarily, the presumption ought to be that the alternative will be utilized while ensuring fair hearing principles are adhered to.
On the issue of assessment of credibility, arbitrator Rogers started by noting that “credibility alone is not a sufficient factor to displace the presumption that a matter proceed virtually. She added that from her experience, she had found that it was not harder to assess credibility at a virtual hearing than in-person. She commented that arbitrator Luborsky in Hamilton (City) had also stated that many of the concerns raised in respect of the use of videoconferencing during the pandemic had not been borne out by the experience of others. She ordered that the matter proceed by way of a virtual hearing.
Decisions related to applications to testify by teleconference are considered in section 13:500 of the Illness and Absenteeism manual and its supplement.
2. The termination of an older employee who frequently fell asleep while monitoring the operation of mechanical equipment was found to have been excessive. Arbitrator Knopf found that the employee was no longer suitable for the position, and as a consequence, ordered that damages be paid in lieu of reinstatement.
In VPC Group Inc., 2021 CanLII 7424 (ON LA) (Knopf), a long term employee had been terminated for having fallen asleep in a small monitoring room where he sat and observed the operation of mechanical equipment. The employee denied that he had been sleeping, in that he was just “resting his eyes.” He had been cautioned regarding several similar instances in the past, but no formal discipline had ever been imposed. The arbitrator concluded that the employee had either been sleeping on the job or had been inattentive to his duties, for he could not have been attending to his duties during the four minutes that he sat with his eyes closed.
The employee was 67 years of age. This was not a nesting case, where the employee sought to conceal himself in order to avoid detection. Rather, arbitrator Knopf commented that this was “an elderly employee who nodded off in a small, open cubicle during what is undoubtedly one of the most boring jobs imaginable.” Given the circumstances, the penalty of termination was excessive. However, the facts suggested that corrective measures had not worked in the past and may not work in the future. She concluded that because the employee was no longer suitable for this position, reinstatement would not be appropriate. Damages were awarded in lieu of reinstatement, with the damages to be calculated based on 1.25 months of pay for each year of service since the employee’s last date of hire plus a 15% top-up to compensate for loss of fringe benefits. The damages were to be subject to statutory deductions.
The appropriateness of damage awards in lieu of reinstatement is considered in section 14:700 of the Illness and Absenteeism Manual and its supplement.
3. An employer was found to have discriminated against a longer-term employee after its manager assigned some of that employee’s hours to two newly hired employees who were of the same ethnicity as the manager.
In Welland Avenue Food Services Inc. (A&W), 2021 HRTO 95 (CanLII) (Doyle), a longer term employee who had historically worked full time had her hours reduced by reason of some of her hours being assigned to two newly hired employees who were of the same ethnicity as the manager who assigned the hours. The adjudicator concluded that preferential treatment was given to the two new colleagues.
She was treated in a differential fashion, to her detriment, and in the absence of evidence to the contrary, I infer that this was at least in part because she did not share the same ethnic background as the new workers and the manager. I find that she has established a prima facie case.
The employee complainant resigned her employment and ultimately sought six years of wages commencing as at the date of her resignation. The adjudicator rejected this aspect of the claim on the basis that the employee had failed to mitigate her wage losses:
The applicant is under a duty to mitigate her losses by making reasonable efforts to obtain suitable employment. While I recognize that the respondent [employer] has the onus to show that the applicant [employee] did not mitigate her losses, the [employee] has provided no information regarding any job search she has done, other than to say that she looked for a job. There is, for example, no evidence indicating when she looked for a job, how many jobs she looked for, or the extent of her search generally. I am not satisfied the evidence indicates she made reasonable efforts to obtain suitable employment and mitigate her losses.
The employee had sought financial compensation in the amount of $480,000 for injury to her dignity, feelings and self-respect. The adjudicator found that an award of $5,000 would be appropriate for such loss.
The employee had also sought $1,500 in respect of expenses she claimed to have incurred. That claim was also denied, for she had not provided invoices, receipts or even a detailed accounting in respect of the amount claimed.
The prohibition against discrimination on Code-protected grounds is addressed in Chapter 14 of the Illness and Absenteeism manual and its supplement.