Illness & Absenteeism - September/October 2021 Newsletter
Welcome to the September/October, 2021 issue of the Illness and Absenteeism newsletter. In this issue, you will find:
- An employee who seeks to be accommodated is not entitled to be placed in a position of their choice. Where the employee turns down a reasonable offer of accommodation, they may lose their entitlement to any further accommodation. [click here to read more]
- An arbitrator was not prepared to accept an inference that an employer was required to pay for the cost of a medical certificate that was not specifically required by the employer. [click here to read more]
- An employer’s disciplinary process was found to be flawed when it simply accepted the complaining employee’s statement at face value.[click here to read more]
- Where an employee impedes the accommodation process by failing to respond to the employer’s reasonable requests for medical information, the employer’s duty to accommodate comes to an end and the employee’s termination is justified. [click here to read more]
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1. An employee who seeks to be accommodated is not entitled to be placed in a position of their choice. Where the employee turns down a reasonable offer of accommodation, they may lose their entitlement to any further accommodation.
In Unifor Local 2002, 2021 CanLII 74055 (CA LA) (Hodges), the employee was an Aviation Safety Officer who was suffering chronic back pain as a result of the design of the seat in his work vehicle. Attempts at modifying the seat were unsuccessful and the parties determined that the employee should be accommodated by finding him an alternative role.
Throughout the accommodation process, the employer identified multiple jobs within the organization which suited the employee’s medical restrictions and were operationally feasible. However, the employee found those positions unacceptable and turned them down.
In considering whether the employer had met its obligations, arbitrator Hodges noted that:
Duties and responsibilities in cases of employee accommodation…[do] not only apply to the Employer. The Employee has significant obligations as well. For example, an employee may lose an entitlement to any further accommodation if they turn down a reasonable accommodation offer.
An employee [is] not entitled to be necessarily accommodated in the position of his choice. An employee may decline accommodated positions which are offered, but in the face of such declinations it is less than compelling for that same individual to assert that the Employer has made no reasonable effort to accommodate him or her.
The arbitrator found that the employer had met its duty to accommodate and the grievance was dismissed.
In Protrans BC Operations Ltd., 2021 CanLII 54689 (BC LA) (Pekeles), the union sought reimbursement for the cost of medical certificates that were required as part of employee claims to the insurance carrier for short term disability benefits.
The collective agreement stipulated that the employer would be responsible for the cost of medical certificates where it required an injured or ill employee to provide such a certificate.
The arbitrator found that this language addressed the situation where the employer required a doctor’s certificate from the employee rather than the situation where the insurance carrier required such a certificate.
The employer had never reimbursed employees for the cost of obtaining medical certificates requested by the insurer but had always paid for certificates that it had requested for its own purposes. The arbitrator concluded that:
Had the parties meant for the employer to pay for a medical certificate/statement required by the insurance carrier, as opposed to one required by the employer, they would have agreed to language along the following lines:
Where such a certificate is required, or where the insurance carrier requires a medical certificate, the cost of obtaining the certificate will be borne by the Employer upon production of receipts.
The union’s grievance was dismissed.
In Ontario Power Generation, 2020 CanLII 142 (ON LA) (Steinberg), the arbitrator agreed that the employer’s interview process was flawed, for the employer had accepted the complainant’s allegations at face value as reflected in the fact that the complainant was never interviewed concerning such allegations. The employer had not made any effort to understand the context of the texts attached to complainant’s statement although it should have been obvious that the relationship between the grievor and the complainant needed to be placed in context before the grievor’s actions could be fully understood and evaluated …” The employer had accepted that the grievor’s behaviour was inappropriate before hearing anything from him … The disciplinary investigation process was unfair in that the employer had refused to show the grievor the complainant’s written allegations. The grievor was entitled as a matter of procedural fairness to know what the allegations against him were.
The matter had been dealt with as an informal complaint.
… Regardless of whether the matter was dealt with as a formal complaint … and apart from any collective agreement requirements, the grievor was entitled to procedural fairness in the investigation. The [formal complaint procedure] is instructive about what that entails. It recognizes that fairness requires that employees in the position of the grievor in this type of case should be provided with the particulars of the complaint so that they can properly respond to the allegations. There was no satisfactory explanation why someone who is subject to the identical complaint should be provided with less disclosure and therefore a lesser standard of fairness where the issue is resolved formally than someone who is the subject of a formal complaint under [the formal complaint procedure].
The adverse impact on fairness was compounded by the open-ended questions that were asked at the first disciplinary interview such as “Have you made any comments to the [complainant] about her appearance or clothing? What did she say? How did she respond?” … “While discipline might be warranted for some of the responses during the investigation interview, it is mitigated by the lack of procedural fairness in the process.”
The arbitrator characterized the grievor’s conduct as sexual annoyance rather than sexual coercion. A thirty day unpaid suspension (along with conditions) was substituted in place of the termination that had been imposed. The grievor had sought aggravated damages. That claim was rejected, with the arbitrator relying on Cowichan Tribes where the arbitrator in that case stated that “aggravated damages will only be awarded where the conduct of the employer in effecting the termination is inconsistent with the employer’s duty of good faith and where the employee suffers mental distress because of that conduct.” While here, the employer’s investigation was flawed, it did not “act in a manner inconsistent with its duty of good faith. While errors were made, they were not motivated by an anti-grievor animus nor were they cavalier, insensitive or reckless.”
Finally, the employer here argued that this was an appropriate case for the extraordinary remedy of compensation in lieu of reinstatement. In doing so, it relied on Humber River Hospital for the proposition that the relationship was no longer viable and that compensation should be awarded in lieu of reinstatement. The arbitrator here refused to follow that award on several grounds. Primary among them was that the grievor’s lack of trust in the employer was attributable to the employer’s flawed investigation process. “ … Whatever lack of trust the grievor felt towards the employer was well founded and since his views will be vindicated by this award, there is no reason to believe that his lack of trust toward the employer will continue.” Further, “there is no evidence that the grievor’s return to the workplace would create significant tension and upset among his colleagues or that co-workers will refuse to work with him or that his presence runs the risk of a ‘poisoned’ atmosphere in the workplace.”
The motion to adjourn was denied and the grievance was dismissed.
4. Where an employee impedes the accommodation process by failing to respond to the employer’s reasonable requests for medical information, the employer’s duty to accommodate comes to an end and the employee’s termination is justified.
In SeaStar Solutions and others (No. 3), 2021 BCHRT 108, the British Columbia Human Rights Tribunal considered whether the employer, SeaStar, was justified in terminating an employee who had taken an extended medical leave but failed to provide detailed information regarding the nature of his illness and the limitations on his ability to perform his job.
The terminated employee had been SeaStar’s Director of Human Resources for several years and reported directly to the company’s Vice President (the “VP”). Up until his leave of absence, he had been a “spectacular” employee and valuable member of the employer’s senior management team.
By March, 2017 the employee had begun experiencing depression and anxiety due, in part, to the pressures and challenges of his job. He communicated to the VP that he was seeing his doctor about health issues he was experiencing but he did not elaborate on the nature of those health issues. In fact, he did not trust his boss with sensitive information and did not want him to know that he was experiencing mental health problems as he believed that his boss would not be able to keep that information confidential within the workplace. Although the employee did communicate certain information regarding his condition to a colleague within the employer’s HR department, that colleague was the employee’s subordinate and friend and the information had been provided to her with clearly expressed wishes that it was not to be passed on to the VP.
Beginning in May 2017, the employee began taking a series of medical leaves of increasing duration, each time providing a one line “work absence certificate” from his doctor stating that he would be unable to work for a specified period of time “due to illness/injury”. Although the employee did return briefly, he was effectively away from work from May, 2017 onward.
On May 31, 2017, the VP sent the employee a memo stating that the company required “further information to understand the duration of your leave and nature of your treatment” and attached a letter with a series of eight specific questions that it wished to have answered by the employee’s doctor.
The employee interpreted the memo and request for additional information as adversarial and did not respond to it other than in an email to his colleague in the HR department in which he expressed his shock at the request.
Between June and September 2017, the employee continued to see his doctors but never provided any information to the VP or the employer other than confidential text messages to his colleague within the HR department.
On October 2, 2017, after more than 4 months of medical leave, the employer wrote to the employee stating that it now considered him to be on an unpaid leave of absence and asked him to provide some correspondence or information to justify his continued absence from work or a date when he planned to return. Although the employee had some further communications with his colleague in the HR department, he did not respond to that letter. On October 16, 2017, the employer wrote to the employee again and stated that it was giving him “one further opportunity” to have his physician answer the questions posed in the May 31 letter. This letter was sent by registered mail but the employee ignored or refused delivery of it and it was returned.
The employer followed up with one final letter on November 1, 2017 and delivery of this letter was refused by the employee.
On November 22, 2017, the employee’s doctor provided a new “work absence certificate” stating that the employee would be unable to work due to illness/injury until February 1, 2018. At this point, the employee had been away from work for approximately 6 months. On December 1, 2017, the employer sent a letter to the employee advising him that the latest work absence certificate was not responsive to the request for medical information and that he was being terminated “with cause due to job abandonment and failure to respond to our inquiries about your unapproved leave of absence”.
In considering the matter, the Tribunal concluded that the employee’s refusal to provide information regarding the nature of his disability impeded the employer’s accommodation process, thereby bringing the employer’s duty to accommodate to an end. In that regard, the Tribunal stated:
It is well established that an employer would rarely require information about diagnosis or treatment, however, it does reasonably require available information about limitations, restrictions and prognosis so that it can make decisions, plan and carry on business.
The following passage from Chang v. B.C. (Ministry of Small Business and Revenue) (No. 2), 2007 BCHRT 148 at paras. 58‐59, is applicable to this case:
The Tribunal has found that an employer has the right to seek information about an employee’s medical condition and that it is appropriate to do so in the context of accommodation. Where an employee does not cooperate and the result is an adverse impact on the employee, the Tribunal has found that this does not constitute discriminatory conduct on behalf of the employer: see: Dennis v. British Columbia (Ministry of Skills, Development and Labour), 2003 BCHRT 168 and Latreille v. Solectron Global Services (No. 2), 2006 BCHRT 9.
Further, an employer has the duty to inquire once it is advised of an employee’s possible illness or injury; failing to do so can be discriminatory: Rozon v. Barry (cob “Barry Marine”), 2000 BCHRT 15. However, if an employer makes such inquiries and a complainant does not cooperate by providing medical information, their complaint will fail: Miller obo others v. B.C. Ferry Services and Taylor, 2007 BCHRT 51.
The tribunal concluded that the employee’s lack of communication and cooperation had impeded the accommodation process such that the employer’s duty to accommodate had come to an end and the complaint was dismissed.