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Illness & Absenteeism - October 2020 Newsletter

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Welcome to the October, 2020 issue of the Illness and Absenteeism newsletter. In this issue, you will find:

A. Featured Case: An employer was found to have breached its procedural and substantive duty to accommodate under the Human Rights Code when it terminated an employee pursuant to the deemed termination provision in the collective agreement without having first met with the employee to determine if he would be able to return to work, with or without accommodation, either presently or at some point in the foreseeable future. All of the information on which the employer had relied was based on the medical status updates that it had received from its insurer. In order to fulfill the duty to accommodate, the employer should have met with the employee and made its own “enquiry and determination”. [click here to read more ]

B. Other Decisions of General Interest

  1. An employee who was absent from work for three or more days without having provided a reason satisfactory to the employer was found to have been properly terminated due to a deemed termination clause in the collective agreement. [click here to read more]
  2. An Attendance Management Program will not be unreasonable merely because it does not prevent an employer from terminating an employee who still has sick days standing to her credit. [click here to read more]
  3. During the past few years, several Canadian employers and health care unions have negotiated a provision that compelled nurses to be vaccinated annually against influenza unless the vaccination was contraindicated, in which case the nurse was required to provide a medical certificate to that effect. Sunnybrook Health Sciences Centre, 2019 CanLII 53757 (ON LA) (Surdykowski) is the first reported decision to consider the type of medical evidence that needs to be adduced to establish that the influenza vaccine is contraindicated for a particular employee. [click here to read more]

 


A. Featured Case: An employer was found to have breached its procedural and substantive duty to accommodate under the Human Rights Code when it terminated an employee pursuant to the deemed termination provision in the collective agreement without having first met with the employee to determine if he would be able to return to work, with or without accommodation, either presently or at some point in the foreseeable future. All of the information on which the employer had relied was based on the medical status updates that it had received from its insurer. In order to fulfill the duty to accommodate, the employer should have met with the employee and made its own “enquiry and determination”.

In Regional Municipality of Peel (Peel Regional Paramedic Services), 2019 CanLII 20739 (ON LA) (Waddingham), the employee had been terminated after having been absent from work for almost 2 ½ years. The operative clause in the collective agreement provided that seniority would terminate and an employee would cease to be employed when off work for a continuous period of 12 months except that if the employee was off work due to a compensable injury or was in receipt of long term disability benefits, the period was 24 months. The clause also provided that the provision may be subject to the Ontario Human Rights Code.

The employee had been employed by the employer and its predecessor for 32 years. In 2016, the LTD insurer advised the employer that the information that it had from the employee was insufficient to determine if the employee was entitled to LTD benefits beyond the 24 month transition point under the policy, for in order for the employee to continue to receive LTD benefits beyond the 24 months, the employee’s medical condition must be such as to prevent him from performing the duties of any occupation that he would be able to do based on his education, training and experience.

When the required medical information was not forthcoming, the insurer wrote to the employee to advise that the insurer had scheduled him for an Independent Medical Exam (an “IME”). He was advised that the IME was required to determine his eligibility for LTD benefits and that if he did not attend, his claim would be closed. The employee did not confirm receipt of the communication and did not attend the IME. His benefits were discontinued.

The employee subsequently filed a civil claim against the insurer for the continuation of his LTD benefits.

After the employee’s LTD benefits were terminated, the employer wrote to the employee and terminated his employment on a without cause basis. The employer’s decision was said to be based on two factors: the deemed termination provision in the collective agreement and the fact that at the time the decision was made there was no indication that the employee would be able to return to work in any capacity in the foreseeable future.

All of the information on which the employer relied had come via medical updates that it received from the insurer. The employer never communicated with the employee directly to discuss his condition and/or possible accommodation. The union contended that the employer’s failure to communicate directly with the employee and its admitted reliance on the insurer with respect to such matters constituted a breach of employer’s procedural and substantive obligations under the Human Rights Code. It submitted that at the very least, the employer had a duty to notify the employee of its intention to terminate his employment. It contended that an employer cannot rely on the termination clause alone and that such clause is just one factor to consider in determining the adequacy of the accommodation efforts. It argued that “an employee’s human rights extend beyond the mere application of such clauses [for the] employer must consider the individual circumstances of the employee to establish that its efforts to accommodate the employee have reached the point of undue hardship.”

Arbitrator Waddingham stated that the collective agreement clearly authorized the employer to terminate the employee in the circumstances set forth in the article. In the absence of an allegation that the employment was terminated for some other reason, “the ‘just cause’ requirement … of the collective agreement does not apply … either because it does not apply to a termination under [the operative clause] or is met where the requirements of that provision have been adhered to”.

The arbitrator stated that in the case of innocent absenteeism:

It has long been accepted that an employer may terminate an employee’s employment for innocent absenteeism on the basis that the employee is unable to fulfill the duties of his or her position and /or that the employment contract is frustrated (see for example Massey-Ferguson Ltd., [(1972), 24 L.A.C. 344)]. The present arbitral view is that an employer may dismiss an employee in circumstances where the employee has been absent from work for an extended period (or has been unable to maintain a reasonable degree of attendance over a period of time) and it is unlikely the employee will be able to return to work (or maintain reasonable attendance) in the foreseeable future, even with accommodation in the workplace.

In terms of the role of “termination clauses” in assessing reasonable accommodation, the arbitrator cited McGill University Health Centre, 2007 SCC 4 (CanLII), where the Court stated:

Thus, although a clause providing for termination of the employment relationship after a specified period is not determinative, it does give a clear indication of the parties’ intention with respect to reasonable accommodation. It is accordingly a significant factor that an arbitrator must take into account in considering a grievance. In these circumstances, and depending on the duration of the authorized period of absence, such a clause can serve as evidence of the maximum period beyond which the employer will face undue hardship. This evidence may prove very useful, especially in the case of a large organization, where proving undue hardship resulting from an employee’s absence could be complex.

The arbitrator concluded that the employer had not accommodated the employee to the point of undue hardship:

The most significant shortcoming in the [employer’s] accommodation of the [employee] was its failure to determine definitively, through direct communication with the [employee], whether or not he would be able to return to work in the reasonably foreseeable future.

While the employer had traditionally relied on the insurer to initiate the return to work process with its employees, that “was not sufficient to meet the employer’s obligation to its employees. The arbitrator stated that “in order to fulfill its duty to accommodate, the employer must make its own enquiry and determination.” He also stated that:

While not part of its “duty to accommodate” per se, an employer owes a disabled employee, - including one subject to a termination clause - a duty to warn of its intention to terminate their employment. The [employee] received no such warning. Informing the union of its intention to terminate … was not sufficient to discharge this duty. By informing the [employee] directly – in the context of a fulsome enquiry into his fitness to return to work – that it was in a position to terminate his employment, the [employer] would have communicated to him the seriousness of his situation.

On the matter of remedy, the arbitrator stated that to issue any remedy beyond a declaration, the union must show that the employee was fit to return to work, with or without modified duties at the time of his termination, or that he would have been able to return to work in the reasonably foreseeable future. The matter was to be remitted back to the parties for further direction.

 


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B. Other Decisions of General Interest

1. An employee who was absent from work for three or more days without having provided a reason satisfactory to the employer was found to have been properly terminated due to a deemed termination clause in the collective agreement.

In Humber River Hospital, 2019 CanLII 41038 (ON LA) (Slotnick), the employee was terminated pursuant to a provision that stated that an employee would lose all seniority and be deemed to be terminated if absent from scheduled work for a period of three (3) or more consecutive days without notifying the Hospital of such absence and without providing a reason satisfactory to the Hospital.

The employee had been under arrest at the time as a result of an incident outside of a neighbourhood bar. As per his instructions, his wife requested that his employer grant a personal leave of absence. No reasons were given, for he had instructed that his wife not advise the employer that he was incarcerated. The leave was not granted.

The arbitrator stated that while that communication constituted “notice of absence”, it falls short of providing a reason, let alone a reason satisfactory to the hospital … Despite the later calls from his wife, the employer would not have any reason to believe that [the employee] was requesting a leave of absence because he was in jail; rather when the [employee] failed to return to work when he said he would, hospital management was faced with a request for a leave, without any reasons given, from [the employee’s] wife.

The arbitrator summarized the relevant law in the following terms:

      • Deemed termination clauses are not the same as “just cause” clauses; a deemed termination is not considered a disciplinary matter, and the onus is on the union to establish that it does not apply …
      • If the union does not discharge its onus, the arbitrator does not have discretion to reinstate the [employee] or otherwise vary the penalty …
      • The phrase “reason satisfactory to the Hospital” gives the employer more discretion to reject an employee’s reason for absence than the more objective standard implied in clauses containing the phrase “satisfactory reason” …
      • However, given the harsh consequences to employees, deemed termination clauses must be strictly construed …
      • Nevertheless, the fact that [an employee] did not intend to abandon the position is not relevant to whether the conditions in a deemed termination clause are satisfied …
      • Where the employer is made aware of the reason for the absence before the termination of employment, and that reason satisfies the wording of the clause (“reason satisfactory to the employer,” “satisfactory reason,” “reasonable excuse,” etc.) the clause will not apply and the [employee] will be reinstated …
      • The employer must assess in good faith the reason given for the absence, but where no explanation for the absence is provided, the employer has nothing to consider, and the employee can be deemed terminated …

The arbitrator commented that “both the leave of absence clause and the deemed termination clause give the employer some discretion to assess whether there is justification for the absence. Here, the employer was given no basis on which to consider the request for the leave of absence, nor was it given a reason for [the employee’s] failure to show up to work.”

… The evidence leads me to the conclusion that [the employee] made a conscious decision not to disclose to the hospital his criminal charges and incarceration. [He] testified that he knew the rules. He agreed that he had read and understood a letter sent to him … less than three months prior to his termination during a previous absence. That letter warned him that his job was in jeopardy and set out [the relevant article] in full. In that case, he said, he was able to produce the necessary documentation to satisfy the employer.

However, in this case, he decided that rather than give the employer the true reason, or any reason, for his failure to attend work, he would simply have his wife request a leave of absence without providing any details … Even though there were plenty of opportunities for [the employee] or his wife to advise the employer of the true reason for the absence … [the employee] made a decision not to be forthright …

My conclusion is that the hospital acted reasonably and in accordance with the collective agreement, given the information – or lack thereof – that it had at the time … The conditions necessary for a deemed termination were satisfied once [the employee] missed three shifts after his arrest.

The grievance was dismissed.

 

2. An Attendance Management Program will not be unreasonable merely because it does not prevent an employer from terminating an employee who still has sick days standing to her credit.

In Revera Long Term Care Inc. (Mackenzie Place) (Newmarket), 2019 CanLII 29854 (ON LA) (Randall), the employee had been terminated pursuant to the provisions of the employer’s attendance management policy (the “AMP”). The employer characterized the termination as being “due to frustration of the employment contract”.

The termination letter stated that the employee had been through the five stages of the policy, had meetings and received letters at each stage, had been offered assistance and warned in a letter at stage 4, that a failure to improve her attendance may lead to her termination. The employee did not meet the attendance requirements in the following six months and was terminated.

On the first day of the hearing, the parties executed a Memorandum of Agreement. The Memorandum rescinded the termination and reinstated the employee at Stage 4 of the attendance management program. It provided that the employee would be monitored for six months of active employment after her return, following which she would remain at Stage 4 or progress to Stage 5 of the program. Arbitrator Randall was to determine whether the employee was to be entitled to back pay from the date of the termination to the date of her return to employment along with whether the employer was able to terminate the employee pursuant to the provisions of its attendance management policy.

Arbitrator Randall stated that the issue she was left to decide was whether the policy was unreasonable because it set attendance targets that were more demanding than the sick leave entitlements in the collective agreement. In that regard, the employee had a credit of seven sick days when she was terminated.

Arbitrator Randall stated that there is a “clear arbitral consensus that a sick pay or benefit plan under a collective agreement neither precludes termination for absences during which pay or benefits are received, nor prevents discharge of an employee with a positive balance of sick credits”. She cited six cases and stated that:

The thrust of those cases is that sick leave provisions, while relevant, are not determinative of the standard of acceptable absence or of the employer’s right to terminate for same. The analysis is tied to the view that sick leave entitlement or credits have three purposes … obviously, sick leave covers current illnesses, but it also covers potential future long term illnesses as well. This second purpose is highlighted by arbitrators, especially where, as here, there is no provision in the collective agreement for either STD or LTD. The third purpose highlighted in the cases is that the sick bank also sometimes functions as a retiring allowance … That is the case under this collective agreement, where sick leave credits are paid out at 50% of the balance upon retirement.

Arbitrator Randall dismissed the union’s argument that the employer’s decision was unreasonable:

Based on that arbitral consensus, I reject the union’s argument that the employer’s decision to terminate the [employee] was unreasonable because a number of the absences relied on by the employer were covered by her sick leave benefit and she had a positive balance of sick day credits at the time of her termination.

3. During the past few years, several Canadian employers and health care unions have negotiated a provision that compelled nurses to be vaccinated annually against influenza unless the vaccination was contraindicated, in which case the nurse was required to provide a medical certificate to that effect. Sunnybrook Health Sciences Centre, 2019 CanLII 53757 (ON LA) (Surdykowski) is the first reported decision to consider the type of medical evidence that needs to be adduced to establish that the influenza vaccine is contraindicated for a particular employee.

In this case, the grievance was unsuccessful and the employer was found to have acted properly when it placed the nurse on an unpaid leave of absence during an influenza outbreak.

Arbitrator Surdykowski concluded that the medical evidence tendered by the union was wanting. The opinion of the first of the two doctors called by the union was based on the employee’s self-reporting and opinion. The doctor had never treated the employee for the reaction symptoms she claims to have suffered after a flu shot, and he had never observed or treated the employee within two weeks of receipt of the influenza vaccine. That doctor had diagnosed the employee as having a known G6Pd deficiency which factored into his opinion. Several of the employee’s supposed symptoms did not appear in the doctor’s clinical records. The arbitrator was of the view that this doctor knew nothing about G6Pd deficiency and that he was not in a position to offer a professional opinion about anything having to do with that condition.

The second doctor had some G6Pd deficiency experience. However, the arbitrator concluded that while both doctors made a “sort of assessment”, neither of them “made the assessment necessary to determine whether the influenza vaccine” was contraindicated for the employee. Neither referred the employee for influenza vaccine allergy testing and neither had treated or observed any of the post-vaccination symptoms that she claimed.

The union had contended that a person’s self-reporting should be accepted as a reliable basis for the professional assessment of medical contraindication. The arbitrator rejected that suggestion, stating:

I do not agree. The [employee’s] years old self-reporting of symptoms was not sufficient for the purpose. Yes, a patient’s self-reported history is a relevant even necessary consideration but surely it cannot form the sole basis for a legitimate professional medical opinion that a medical contraindication does or does not exist. Even [the first of the two doctors] acknowledges that self-reported patient symptomology must be checked and tested – notwithstanding that he did not do any such investigation.

The second of the two doctors had testified that “she supports her patients’ decisions even if they are contrary to medical evidence or advice. That appears to be [the other doctor’s] approach as well. I find this remarkable – and not in a good way. It is one thing for a medical health professional to be a supportive advocate for her or his patients, but quite another to support a patient’s baseless or contraindicated desires. In essence, [both of these doctors] gave the employee what she wanted, a diagnosis of influenza vaccination contraindication, without any objective basis for doing so. It is apparent that they were trying to be supportive of a patient who on the evidence can be quite assertive and demanding, as well as unresponsive to actual evidence. But in doing so, they did the [employee] no favour.

The arbitrator further stated:

It may be that the employee has suffered the symptoms she describes, and it may be that she honestly believes that these are symptoms of hemolytic anemia caused by a reaction to the influenza vaccine. But honest belief does not constitute the necessary basis for a medical contraindication, and there is no factual basis for the [employee’s] belief. On the other hand, I consider her unsubstantiated claim that the influenza vaccine contains known carcinogens and that even a healthy adult should not take it telling. This is in the nature of an unsubstantiated anti-vaxxer claim which probably contributes to her resistance to influenza vaccination.

Based on the medical evidence that he heard, arbitrator Surdykowski opined on the factors that would suggest a medical contraindication:

I am satisfied that a medical treatment is contraindicated if it is likely to cause an individual significant harm. A vaccine is medically contraindicated if there is a demonstrable risk of serious harm to the individual. But even if an individual has a condition that increases the risk of a serious adverse reaction to a vaccine, vaccination may nevertheless be indicated (which to be clear is the opposite of contraindicated) if the benefits of the protection provided by the vaccine is objectively judged to outweigh the risk.

Influenza vaccine side effect symptoms can include swelling, redness or pain at the site of the inoculation, a low-grade fever, headache or body aches, mild fever, nausea, sore muscles, red or itchy eyes or an overall feeling of illness that many people mistake for the flu – most often within a day or two of inoculation. These symptoms are the body’s normal immune response to the inactivated virus in the vaccine which provides the protection against infection. In rare cases, an inoculated person may experience an allergic reaction to the vaccine. Symptoms include trouble breathing, hives, swelling around the eye or mouth area, weakness or dizziness. Typically, these symptoms occur within a few minutes to hours after the vaccine was given. Otherwise, there is no evidence that a dead virus influenza vaccine will make a person sick.

The common side effects of influenza vaccination do not constitute harm which serves to contraindicate the vaccine. If they did, no one would be vaccinated. The historical record of influenza pandemics, even in the modern era, should give anyone who questions the need for or efficacy of influenza vaccination significant pause.

Although influenza vaccination is not contraindicated for the general North American population, it may be contraindicated for individuals who have a condition which exposes them to significant harm greater than the typical common side effects of the influenza vaccine.

Hemolytic anemia can damage a person’s heart or other major organs through oxygen starvation. It is clearly a serious condition. Symptoms of G6Pd deficiency-related hemolytic anemia can include: rapid heart rate; shortness of breath; dark or yellow-orange urine; fever; fatigue; dizziness; paleness; jaundice (yellowing) of the skin and whites of the eyes. The three main triggers for hemolytic anemia in G6Pd deficient patients are infections, certain foods, and certain drugs. No influenza vaccine has been identified as a trigger for hemolytic anemia.

However, I accept that it is possible that the influenza vaccine may be contraindicated for a particular G6Pd deficient individual. I agree with the [employer] that the test for medical contraindication is an objective one, not an individual’s subjective belief, however honestly held. Belief is important, but when it comes to medical issues, particularly contraindication issues, belief does not equate to fact, and it is facts that matter.

The arbitrator also noted that “even on the [employee’s] evidence, there is no temporal correlation between her uncorroborated self-reported symptomology and any of the nine [previously documented] influenza vaccinations she received.” He also stated:

There has been no cogent objective evidence presented which supports the [employee’s] claim that the influenza vaccine is contraindicated for her. There is no objectively demonstrated connection between the [employee’s] alleged symptoms, if they occurred at all, and any influenza vaccination. In fact, there is no evidence that the [employee] has ever actually suffered an episode of hemolytic anemia for any reason.

Arbitrator Surdykowski concluded that the employer was justified in placing the employee on an unpaid leave during the influenza outbreaks.