IN THE MATTER OF AN ARBITRATION BETWEEN:

SUNNYBROOK HEALTH SCIENCES CENTRE

(the “Employer”)

- and -

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1 CANADA

(the “Union”)

Attendance Support Program - Grievance # SB14-06 SER (100 218 468)

A W A R D

Paula Knopf - Arbitrator APPEARANCES: For the Employer Brian P. Smeenk, Counsel Avneet Jaswal, Student-at-Law

Matthew Sutcliffe, Director, Labour and Employee Relations, Legal Counsel Adrian Hascal, Manager, Labour & Employee Relations Anne McIsaac, Human Resources Business Partner Tanya Verissimo, Labour Relations Assistant For the Union Aleisha Stevens, Counsel Mike Blanchard, Student-at-Law Sarah Correia, Union Representative Todd Davis, Union Representative The hearing in this matter was held in Toronto on November 10 & 26, 2015 and

April 6 and May 27, 2016.

This Award deals with the Union’s challenge of the Employer’s Attendance

Support Program (ASP or the Program). Over the course of this hearing, many

details of the Program were modified and adjusted in response to some of the

Union’s concerns. However, the parties still disagree about some of the contents

of the form that is used in the administration of the Program, when that form can

be required and the thresholds to be applied for people coming on, through or out

of the Program.

There is little in dispute about the factual background to this case. There was an

attendance management program in place at the Hospital in the past, covering

close to 6,000 employees and 15 bargaining units. The Hospital came to realize

that there were problems with the old program’s clarity and with the consistency

of its application. Further, the Hospital was concerned about the fact that it was

spending millions of dollars per year for sick pay. This prompted a management

drive to reduce the amount of that expenditure. The Hospital hired Anne

McIsaac, an “Attendance Support Specialist”, and gave her a mandate to design

a “more supportive, comprehensive and thoughtful program”. Her work included

a study of the “best practices” in other public institutions, as well as research and

consultations. Once an initial draft was prepared, the Hospital engaged in

discussions with its various employee groups, seeking feedback and input. A

revised ASP was then launched after extensive educational and familiarization

sessions were held. Any employees who had been enrolled in the previous

program were given a “fresh start”, with no one’s earlier attendance history

counted as a factor in the new ASP.

An integral part of the ASP is the Hospital’s Statement of Fitness for Work (SFW)

form [attached as Appendix A]. Employees at various stages in the ASP may be

asked by the Occupational Health and Safety (OHS) Department to have this

form completed by their doctors as a result of any absence. The Hospital

explained that this form has been designed, to a large extent, to mirror the form

in use at Toronto East General Hospital and which was accepted by the Ontario

Nurses’ Association. However, the Union in this case is challenging some

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aspects of the form and the progression through the Program. The Step

Progression is attached as Appendix B.

It is important to identify at the outset what the ASP covers and what it does not

cover. The Plan does not cover several types of absences, such as WSIB or

some other chronic or major illnesses/injuries. The Leader’s Manual sets out the

Plan’s objectives, coverage and exclusions:

THE NEED FOR ATTENDANCE SUPPORT The Attendance Support Program is based on increasing staff awareness regarding the need to be at work on a regular and reliable basis; providing feedback to employees on their attendance and assisting those employees who are having difficulty maintaining regular and reliable attendance. We believe that absence can by minimized through prevention, early intervention, and individual case management, and that employee attendance issues are best resolve in a positive and supportive manner, PROGRAM OBJECTIVES

To assist employees to achieve and maintain regular and reliable attendance;…..

To obtain clarification of any aspects of the illness or injury that may affect the ability to perform all or part of the job duties;

To seek accommodation measures to assist employees in managing their absenteeism up to and including the Hospital’s obligations under the Human Rights Code;….

To provide a framework for responding to excessive absenteeism; To provide support and guidance to assist employees who have

high absenteeism.

SUNNYBROOK’S ATTENDANCE THRESHOLD The thresholds to trigger attendance counseling meetings are: Full-time: Absenteeism in excess of 3 separate incidents

and/or 45 hours in a 6-month review period Part-time: Absenteeism of 3 incidents in a 6-month review period.

The established 6-month review periods are April 1 to September 30, and October 1 to March 31.in accordance with the Hospital’s fiscal year. Absences that are not included for purposes of attendance threshold included scheduled days off, scheduled vacation, statutory or paid holidays, authorized leaves of absences (ex. WSIB, Bereavement, Parental etc.) and leaves specified by legislation, collective agreements, or Sunnybrook policies. Medically-supported major personal illness or

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injury that results in absences, such as cancer treatment, stroke, recovery from a motor vehicle accident etc. will be considered for exemption. Please note:

1. Absenteeism related to a recognized disability will be managed and responded to in accordance with the duty to accommodate under the Ontario Human Rights Code.

2. Where an employee is on a temporary or permanent accommodation, only absenteeism that is not related to the accommodation will be considered under this program and its’ threshold.

3. Absences that fall under the provision of the Workplace Safety and Insurance Act are not subject to the Attendance Support Program process.

Managers are also instructed on how to “review absences.” Those instructions

include the following relevant directives:

Identify the Action Plan: It is important to recognize that each employee and situation is different, and that each case must be assessed objectively and with some consideration and flexibility to give to individual circumstances. As an attendance issue has been identified or is monitored, all available information must be considered . . . . The number of incidents and length of absences are important in determining the approach to attendance issues. . . . . It is also important to consider if a chronic health condition has been impacting the employee’s ability to attend work. Where a previously unidentified chronic health condition has been identified and validated with objective medical evidence to constitute a disability, the disability related absences will not be counted for purposes of the Program. Individual Circumstances and Corporate Direction It is important for Sunnybrook and specifically, managers to apply the Attendance Support Program in a uniform manner. This becomes paramount when arbitrators scrutinize the program for consistency after it has become necessary to impose the non-disciplinary consequences at Stage 5 of the program. There remains an important role within this program for managers to consider an individual’s circumstances to halt or delay the scheduled distribution of an attendance letter; based on the employee’s individual and often compelling circumstances. Consideration for

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individual circumstances is appropriate when the period of absence that triggered the threshold represented a singular and/or unique occurrence that is outside of the established good attendance record for that employee.

The Union’s specific objections to the ASP will be outlined in the Union’s

Submissions below. However, the Union’s witness, Sarah Correia, put those

objections in context by explaining that this Union represents close to1300

members in the Service and Clerical bargaining units. Ms. Correia

acknowledged that the Employer has made efforts to consult, communicate and

educate the employees about the design and intent of the Program. However,

Ms. Correia expressed frustration over not being given enough information to

understand how the Hospital arrived at its thresholds for entry into and exiting the

Program. Nor was the Union told what “best practices” the Hospital relied upon

in the design of this ASP until this hearing was convened. However, Ms. Correia

did make it clear that the Union is not challenging this Employer’s ability to

implement a “reasonable” ASP with “reasonable” thresholds for entry into and

exiting the Program. The Union’s objection is with regard to the “reasonability” of

the details of the Program. She stressed that these bargaining unit members

often have direct contact with patients. The Service Unit’s duties also include

attending to medical and environmental waste. Therefore, their members are

exposed to many illnesses and their health can be put at risk. Further, they are

subject to a Hospital policy that requires them to remain off work for specific

periods of time if they contract any communicable diseases and they must

remain off work until they are “symptom free” of certain conditions for specified

periods of time. For example, the “Healthy Workplace Policy” demands that

employees must remain off work for 24 hours after they are symptom free if they

experience a fever, vomiting or diarrhea. They also may have to remain off work

and/or be cleared for return by the Occupational Health and Safety Department

until all symptoms are “resolved” if they have pink eye, a sore throat, muscle

aches, a new cough and/or a runny nose. Therefore, the Union has concerns

about a vigorous ASP in this setting where employees are exposed to health

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risks, where their absences may be beyond their control or where they may be fit

to work but must remain away an extra day because of hospital policy.

Ms. McIsaac, the lead designer of the ASP, testified on behalf of the Employer,

partly to explain the Hospital’s intent with regard to the ASP. Her evidence was

detailed and informative. It will not be reproduced in full because, at the end of

the day, it is the Program itself that must withstand arbitral scrutiny, not the intent

behind it. However, the following background is relevant to the issues in dispute.

Ms. McIsaac explained the areas of research, consultation, and study that were

involved in the development of this ASP, including an examination of the

applicable arbitral case law. She identified and summarized the other attendance

support programs that were considered as comparables, setting out their

“thresholds” and their number of “steps” of progression for employees to enter

and exit the programs. These comparators included other hospitals, as well as

municipalities, health care institutions, a university and a police service. This

Hospital’s own attendance management experience was also reviewed against

those comparators, together with the feedback from the Hospital’s employee

groups. From all this, the Employer established what it now considers to be the

“reasonable” thresholds and details for its ASP. The Hospital has also promised

to review the thresholds annually and adjust them as necessary to ensure a

“productive ASP”.

Ms. McIsaac also explained that the Hospital wanted to adopt a “clear and

transparent” program so that it would be consistently applied throughout the

Hospital. She acknowledged that the millions of dollars being paid out for sick

time in the past included all absences, such as WSIB and disabilities. However,

the intent of the ASP was to encourage regular attendance and to address other

reasons for “excessive absences” that are avoidable. She testified that this is why

the Hospital utilizes the resources of the Occupational Health and Safety

Department to “support employees in sustainable and reliable attendance.”

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Wendy Morgan is the Manager of the Occupational Health and Safety (OHS)

Department. This Department deals with issues such as employee “wellness”,

benefit claim analysis and disability management. It also offers employees

assistance on health issues upon request. The OHS Department is intimately

involved with the administration of the ASP. Ms. Morgan emphasized that her

Department deals with employees on a confidential basis. She stressed that one

of the Department’s aims in the administration of the ASP is to get a better

understanding of why employees are off and/or to see if her staff can determine if

anything can be done to reduce the time and/or frequency of absences. This is

one of the main reasons why the information on the Fitness for Work form is

being demanded of employees who are enrolled in the ASP. Ms. Morgan cited

examples of how her department has helped people with chronic conditions

reduce their absenteeism by making suggestions or referrals that might have

been overlooked by the employees’ attending physicians. She said that this not

only improves attendance but also “improves their quality of life.” She testified

that the Occupational Health and Safety Department often wants to know what

treatment plan and/or what kind of specialist referral might be in place in order to

assess whether other options might be more helpful to assist with recovery or

avoid repeated absences. She explained that the nurses in the OHS Department

use the information they gain from the Fitness for Work form to talk to the

employees enrolled in the ASP, to “educate” them, to let them know what the

Department can do to help and, on occasion, to intervene with the attending

physician on the employee’s behalf to assist with the understanding of what

might be confusing medical information or to facilitate improved treatments.

Further, the OHS Department has “questioned the validity” of information

provided by an attending physician if the treatment plan did not seem to fit with

the nature of the illness or injury. It was also explained that the Statement of

Fitness for Work form asks the attending physician to indicate “response to

treatment” so that the Occupational Health and Safety Department has the

opportunity to intervene to facilitate more effective and responsive management

of employees’ conditions. She also believes that it is appropriate to ask doctors

to confirm that the treatment is “based on current practices” in order to have

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“older doctors think about” this issue. Ms. Morgan stressed, “It is important for

staff to get the best treatment.” Ms. Morgan also explained why this Hospital’s

form differs from the Toronto East General form by asking for the “area of

specialty” for any referrals because that enables the OHS Department to

“educate” employees with complex medical problems about “options” for

additional treatment.

The Employer has decided to use the single standardized Fitness for Work form

for any absences for employees in the ASP progression, partially at the request

of another union at the Hospital. At the outset of this hearing, the Hospital had

also demanded that the Fitness for Work form be produced after any absence by

everyone enrolled in the Program. The Employer modified that demand before

the conclusion of this hearing, allowing managers to exercise discretion about

whether to demand completion of the form for all absences. The form contains a

prescribed consent from the employee for the release of his/her medical

information related to the current illness/injury, and authorizes the OHS

Department to make direct contact with a doctor to get “supplementary

information”. Ms. Morgan explained that the direct contact is to save time, to

facilitate claims for sick pay and to assist the affected employees.

The Submissions of the Parties

The Submissions of the Union

The Union argued that the ASP imposes requirements that are “unreasonable”

and that unduly infringe upon the personal privacy of employees. The Union

submitted that the Employer’s concerns about frequent and/or excessive

absenteeism have evolved into something that is overly intrusive. It was stressed

that the ASP makes it clear that it does not apply to culpable absences, nor does

it cover absences due to “chronic health conditions that constitute a disability”,

WSIB claims, or medically-supported major personal illness or injury. As a result,

the Employer argues that the ASP is seeking extensive medical and private

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information that is not appropriate for attendance management. In particular, the

Union takes issue with three major aspects of the ASP.

The Union’s first objection is focused on the SFW form. The principle complaint

about the form is the frequency with which it can be requested. The Union

acknowledged that the HOODIP plan is incorporated into the Collective

Agreement and it requires proof of total disability that is satisfactory to the

Employer for absences of three or more days and that this can be subject to

periodic review. The Union asserted that the ASP is inconsistent with the

Collective Agreement where it allows managers to require the SFW form for any

sick absence, regardless of the duration of the time away. Relying on the “three

or more day” trigger from HOODIP, the Union asserted that the only “blanket”

requirement for medical verification that the Hospital can impose can be for

absences of three days or more. For this point, the Union relies on the case of

St. Joseph’s General Hospital Elliot Lake and ONA, 170 L.A.C. (4th) 115

(Sheehan).

The Union’s second objection in relation to the SFW form is based on the

assertion that all the information requested on the SFW form is not necessary for

all absences. For example, it was said that a simple doctor’s note should also

suffice for situations such as the flu, a tooth extraction or a broken bone when

there is no reason to question the reason for or the duration of the absence. It

was argued that each situation should be considered on a case by case basis,

with the “default” position being the protection of the employee’s privacy. The

Union urged that steps should be put in place to ensure that the “least intrusive”

method be adopted to accomplish the legitimate goals of the ASP.

The Union also objects to the Employer trying to compel employees to give

consent for direct access to their attending physicians for each absence. It was

pointed out that the ASP is not aimed at culpable absences where there might be

a need to verify a claim of illness. It was also submitted that it is unreasonable to

demand consent for the Occupational Health and Safety Department to contact

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doctors so that it can question, intervene or assist in an employee’s treatment

plan. The Union acknowledged that the Occupational Health and Safety

Department may have good intentions. However, the Union argued that this type

of intervention is intrusive and inappropriate unless it is requested by the

employee him/herself. The Union also suggests that it is inappropriate for the

OHS Department to want to question or make unsolicited suggestions to a

treating physician. Therefore, it was said that the consent provision on the SFW

form is “overbroad, over-reaching and unreasonable.”

The Union objects to the SFW form’s request to provide the “Area of Specialty” in

the case of a specialist’s referral. It was pointed out that this is not included in

the Toronto East General form that this Hospital’s form is patterned upon.

Recognizing that an area of specialty might be relevant in some situations and

might be something volunteered by the employee him/herself, it was argued that

this information has the potential of revealing a diagnosis or treatment and should

only be requested where circumstances warrant, on an individualized basis.

Another difference between this Hospital’s form and Toronto East General’s form

is the part asking the physician to confirm that s/he is providing care “based on

current best practice recommendations”. The Union queried the “purpose” of

such a question, arguing that it is irrelevant and/or it potentially opens the door

for the Occupational Health and Safety Department to interfere with an

employee’s relationship with his/her doctor. Further, if the purpose of this is to

assist with the management of chronic conditions, as the evidence suggested,

the Union pointed out that the ASP is not designed to deal with accommodation

issues because the parties deal with that effectively under a different stream at

this workplace.

The Union also challenged the SFW form’s questions about Treatments and

Responses to Treatment. It was pointed out that this has the potential of

revealing a diagnosis, prescriptions and dosages, none of which the OHS

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Department needs to know. Again, this is not contained in the Toronto East

General form, and the Union asked that this section be removed.

The Union’s third focus of challenge is on what are submitted to be the “arbitrary”

thresholds for entry into, progression and exiting the ASP. The Union pointed out

that the Step Progression for entering and moving up each step is three separate

incidents and/or 45 hours in a six-month review period for a full-time employee,

or three separate incidents in a six-month period for part-time staff. However,

removal from the Program or movement down through the steps requires being

below the thresholds for longer than it takes to move up. The Union argued that

there is no rationale for failing to reduce the placement in the step process when

a person meets attendance expectations. This was said to be especially

important in a hospital setting when employees are exposed to diseases and they

are prevented by Hospital policy from returning to work in some situations until

they have been symptom free for a specified period. The Union pointed to the

examples of an employee who had recovered from pink eye or vomiting, but

would be required by Hospital policy to remain off work for another 24 hours.

The Union submitted that situations such as these should be exempted from the

count of absences in the ASP.

In support of its submissions, the Union also relies on the following cases: 4:2326

– Standards of Arbitral Review of Management Decisions – Brown and Beatty;

Lumber & Sawmill Workers’ Union, Local 2537 and KVP Co. Ltd., 16 L.A.C. 73;

Molson’s Brewery (Ontario) Ltd. v. B.F.C.S.D., Local 304, 1984 CarswellOnt

2425; York University v. Y.U.S.A., 221 L.A.C. (4th) 48; Re Tilbury Assembly Ltd.

and U.A.W., Loc. 251, 124 L.A.C. (4th) Crljenica; Service Employees International

Union and Sunnybrook Hospital; Grievance of Paul Kasta, Arbitration Award,

April 9, 2010 (R.O. MacDowell); Central Care Corp v. C.L.A.C., 2011

CarswellOnt 1682; Hamilton Health Sciences and Ontario Nurses’ Association,

2007 CanLII 73923 (ONLA); Red Deer College and FARDC (Legault), Re 2015

CarswellAlta 96; Canadian Bank Note Co. and IUOE, Local 772, Re, 2012

CarswellOnt 10489; O.P.S.E.U. v. Ontario (Ministry of Community, Safety &

11

Correctional Services), 2011 CarswellOnt 8979; and Greater Sudbury (Pioneer

Manor) and CUPE, Local 148, 2010 CanLII 43748 (ONLA), Kaplan.

The Union asked that the grievance be allowed and for the following specific

orders:

The SFW form be declared overly broad;

The broad consents for additional information be declared void and

be excluded from the SFW forms, only to be requested on an

individualized case basis when circumstances warrant;

The SFW form be revised by removal of the sections specified

above;

The ASP be redrafted by changing the thresholds of progression

relating to the enrollment, progression and exit from the Program;

Employees be informed of the modifications to the Program.

The Union requested that I remain seized with regard to implementation.

The Submissions of the Employer

The Employer began its submissions by emphasizing the care that was

undertaken in the drafting of the Attendance Support Program, including the

consultations with employee groups, the study of other “comparable best

practices” and the promise to review the thresholds annually based on the

ongoing experience in this setting. It was said that this process enabled the

Employer to develop a “good, fair and supportive” ASP for the entire Hospital. It

was also emphasized that this is designed to be a “support” program, with its

major objective being to assist employees who are having difficulty maintaining

regular attendance. The Hospital stressed the many ways that managers are

given discretion with respect to the monitoring of absences and the flexibility to

consider individual circumstances, both in terms of entry and the progressions

within the Program.

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The Employer emphasized that the SFW form has been adopted because of a

similar form’s acceptance by a very sophisticated union at the Toronto East

General Hospital and because it will give the Occupational Health and Safety

Department at this Hospital the information it needs to verify illness, arrange

accommodations, help employees get sick benefits and to help them manage

chronic conditions. It was said: “The whole idea is to help employees to get the

support they need so that, hopefully, attendance ceases to be a problem.”

Turning to the Union’s objections to specific aspects of the SFW form, the

Employer submitted that it is appropriate to ask employees to provide consent for

the OHS Department to contact treating physicians directly because this

facilitates the faster and more efficient clarification that might be needed to trigger

sick pay and/or accommodations. It was also stressed that the doctors will only

be contacted where more information or clarification is needed, that the

information will be held in confidence and that employees are notified in advance.

The Employer also said that it requires information about the areas of specialty

for referrals because it is useful for OHS Department to know what is being

actively treated when an employee may have multiple medical issues. The

reason the Employer wants doctors to indicate that they are treating employees

“based on current best practices” is to ensure that “everything is being done” on

their behalf.

The Employer also stressed that the ASP now gives managers discretion, on a

case by case basis, to determine whether it is appropriate to require medical

verification, via the SFW form, for each absence during the review period. This

was said to be consistent with the prevailing case law. Further, although it was

acknowledged that a doctor’s note with adequate information might suffice in

some circumstances, it was pointed out that the requirement of the standardized

SFW form ensures consistency, transparency and assists the OHS Department

in determining what, if anything, can or should be done to assist with the

reduction of an employee’s absences.

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The Employer also argued that the Collective Agreement’s incorporation of

HOODIP allows this Employer to require “proof satisfactory to the employer” for

three days of absence or more and that “such proof may also be required at any

time in order to qualify for benefits”. Therefore, it was said that this gives this

Employer the “broad discretion” to determine what proof is required and when,

thereby allowing the Employer to request more comprehensive information from

employees in the ASP progression. In this case, it was said the information

requested in the SFW form is the information that would satisfy the Employer.

The Employer addressed the Union’s objections to the ASP’s entry, progression

through and out of the Program by conceding that there may be honest

differences about how such a progression should be patterned. However, it was

stressed that the role of an arbitrator is not to decide how s/he thinks it ought to

be designed, but rather to assess whether the Employer’s decision was

“unreasonable” or “irrational”. It was stressed that if there is any circumstance

where managers are exercising their discretion in an abusive, arbitrary or

inconsistent manner, this can and should be dealt with by individual complaints.

However, it was submitted that the current thresholds and progressions were

rationally and carefully developed, based on appropriate comparators and this

Hospital’s own circumstances. Therefore, it was argued that the Union has not

met the onus of establishing that there was no rational justification for the design

of the Program.

In support of its submissions, the Employer has asked that the following cases be

considered: Salvation Army Grace Hospital v. UNA, Local 47 [1995] AGAA No. 4,

47 LAC (4th) 114 [Cowan, Currie, Tettensor – Alberta]; Providence Care, Mental

Health Services and OPSEU, Local 431 (Winton), Re [2011] OLAA No. 661, 204

LAC (4th) 345 Surdykowski]; Middlesex-London Health Unit and CUPE, Local

101.2 (AMP), Re, [2013] OLAA No. 533 [Etherington]; Keays v. Honda Canada

Inc., 2008 SCC 39; Sobey’s Inc. and UFCW, Local 176 (Wright), Re, 2003

CarswellOnt 10013; Skeena Cellulose Inc. v. C.L.A.C., Local 44, 2001

CarswellBC 3229; Toronto Hospital and ONA, Re, 1993 CarswellOnt 6697

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(Knopf); Toronto Hydro and CUPE, Local 1 (Re), 2003 CLB 16186 (Saltman);

The Hydro-Electric Commission of the City of Etobicoke and International

Brotherhood of Electrical Workers, October 20, 1988, Arbitrator Paula Knopf;

Toronto East General Hospital and Ontario Nurses’ Association, May 7, 2015,

Arbitrator Jane Devlin; Toronto East General Hospital and Ontario Nurses’

Association, October 21, 2014, Arbitrator Jane Devlin; Newfoundland Labrador

Nurses’ Union v. Eastern Regional Integrated Health Authority, February 19,

2008, Arbitrator Innis Christie; Fish, Food and Allied Workers (FFAW) and

Molson Coors Canada, St. John’s, August 10, 2015, Arbitrator James C. Oakley,

Q.C.; General Motors of Canada Ltd. and CAW, Local 199, 2012 CarswellOnt

15702; and St. Joseph’s Health Centre and CUPE, Local 1144, 1988

CarswellOnt 3831, 34 LAC (3d) 193.

The Decision

Throughout the course of this hearing the parties were responsive to each other’s

submissions and this resulted in many appropriate modifications to the

Attendance Support Plan (ASP). The Employer has agreed to incorporate those

agreed-upon changes. They, together with what follows, shall be adopted into

the ASP materials. Employees and managers shall be advised of the revisions.

Attendance Support Programs have been the focus of may arbitration decisions

before this one. There is little purpose in reviewing the case law extensively

because it is well known to the parties and the labour relations community.

However, a brief summary of the principles that have guided this decision is

appropriate.

The cases cited by both parties recognize that an employer has the right to

monitor attendance and to institute an Attendance Support Program. Indeed,

employers have a valid interest in determining whether absenteeism problems

will continue, what the nature of the problem(s) may be and whether there are

non-intrusive ways to assist employees in overcoming those problems [see

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Salvation Army Grace Hospital and UNA, supra, at para 36; Middlesex-London

Health Unit and CUPE, supra; St Joseph’s General Hospital Elliot Lake and ONA,

supra; and York University and YUSA, supra]. Further, employers have the right

to require employees to provide evidence to support absences when there is a

claim for short-term illness benefits, where there is reason to suspect the

legitimacy of the absence or under an Attendance Management Program if there

has been excessive absenteeism [see Tilbury Assembly; St. Joseph’s Health

Centre; and Skeena Cellulose Inc. and CLAC, Local 44, supra, and virtually all

the cases cited by the parties]. The weight of accepted arbitral authority is well

summarized in the decision of William Kaplan in Greater Sudbury (Pioneer

Manor) and CUPE, supra, where he was dealing with the requirement for

extensive medical information to support short-term sick pay claims. His

summary of the principles is helpful:

In the absence of a collective agreement provision or legislation that provides otherwise the employer is entitled to know only that the employee is unable to work because she is ill or injured, the expected return to work date, and what work the employee can or cannot do. A document in which a qualified medical doctor certifies that an employee is away from and unable to work for a specific period due to illness or injury is prima facie proof sufficient to justify the absence. Unless the collective agreement (or less likely, legislation) stipulates otherwise, it will also be sufficient…to qualify the employee for any applicable sick benefits for that period. To require more invites an unnecessary invasion of the employee’s privacy. In order to obtain additional confidential medical information, the employer must demonstrate a legitimate need for specific information on an individual case-by-case basis. That is, for sick benefits purposes an employer has no prima facie right to an employee’s general medical history, a diagnosis, a treatment plan, or a prognosis other than the expected date that the employee will be able to return to work with or without restrictions (Para 27). It is worth bearing in mind that the issue at hand is provision of short-term disability for short-term absences. In general, short-term absences attract limited disclosure. Experience indicates that these short-term illnesses are often seasonal and usually resolve themselves. They do not normally involve the management of a disability with attendant accommodation obligations where considerable information will often need to be shared. 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

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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. [emphasis added] The test in all cases, as accepted in the authorities, is “objective reasonableness.” But whether that test has been met will depend on the circumstances of individual cases. The employer can still manage absenteeism. In the vast majority of cases, with much more restricted information, the employer can still effectively manage short-term illnesses.

Therefore, the frequency with which this Employer’s Statement of Fitness for

Work form is being requested, and indeed the requirement that it be filled out in

its entirety must be assessed on the basis of “objective reasonableness”, taking

into consideration all the circumstances of the individual in the context of an

employer’s right to monitor and manage attendance.

The principles are clear, but their application is more problematic. It is well

established that an attendance support program must be applied consistently in

order to be fair. At the same time, the application must be sensitive to

individualized circumstances. Those two imperatives are often difficult to

balance. They can only be achieved concurrently if like situations are treated

similarly. Therefore, the frequency of requests for medical verification and the

amount of information that an employer has a right to demand must relate to the

employee’s history, the amount and duration of previous absences and the

17

reasons given for the absences. To that end, the case law provides a helpful

guide [see Toronto East General Hospital, supra, at page 31]. Also, Canadian

Bank Note, supra, advises:

What is required in the first instance by the test of reasonable necessity is the minimum sufficient objectively reliable information necessary to satisfy a reasonable employer that the employee was or is in fact absent from work due to illness or injury, and is entitled to any collective agreement benefits in that respect.

Further, the more extensive information may be demanded as circumstances

warrant, and excessive absences will warrant more information and perhaps

more verification:

33. . . . . the jurisprudence recognizes that it is not always medically necessary for an employee to seek medical attention for a minor illness or injury which may nevertheless render him incapable of attending work. In such circumstances it is generally inappropriate to vex the employee and burden our already overloaded medical health system with a petty demand for a medical certificate. A 1-day absence of a rarely absent employee due to the common cold is but one example of such an ailment (although in most such cases the minor illness or injury readily apparent either before the absence or when the employee returns to work). In the absence of a collective agreement requirement it is generally considered unnecessary, inappropriate, and impractical to require every employee to do so in every case in the first instance. 34. Even where the collective agreement requires an employee to produce or permits the employer to require the employee to produce a medical certificate, what exactly is or may be required of an employee in that respect depends on the language of the collective agreement strictly construed. What is required in the first instance by the test of reasonably necessity is the minimum sufficient objectively reliable information necessary to satisfy a reasonable employer that the employee was or is in fact absent from work due to illness or injury, and is entitled to any collective agreement benefits in that respect. [see Canadian Bank Note, supra]

Therefore, an Employer is entitled to seek reliable information to explain an

absence from work, but is only entitled to demand the least intrusive or minimally

sufficient objectively reliable information to establish a legitimate medical reason

18

for absence. As the absences become more frequent or longer, more

information may be required.

That is not inconsistent with this Collective Agreement that incorporates

HOODIP’s provisions that deal with the provision of benefits. The HOODIP plan

provides:

Proof of total disability (such as a doctor’s certificate), that is satisfactory to the employer, is required if you are absent for three days or more, and is subject to a periodic review thereafter. Such proof may also be required at any time in order for you to qualify for benefits.

First, it must be noted that this provision allows the employer to require a doctor’s

certificate for any absence of three days or more without even having reasonable

grounds to do so. Secondly, it allows the employer to require proof “at any time”

to qualify for benefits. This provision is not applicable to an ASP that is not about

benefits. Although the Union has relied upon St Joseph’s General Hospital Elliot

Lake and ONA, supra, to support its position that the case does not establish that

an employer cannot demand ongoing proof or support for absences for certain

employees who are in an ASP. It is true that the case did conclude that a blanket

policy was inconsistent with HOODIP by demanding a medical certificate for all

future absences in order to qualify for sick pay benefits, despite the three-day

trigger. In that case, there was a clear inconsistency between the employer’s

blanket policy and HOODIP’s provisions. However, Arbitrator Sheehan also

recognized that the HOODIP provision gave the employer the discretionary

power “at any time” to require proof to support a claim for benefits:

20 . . . . . That is, over and above the mandatory obligation to produce a medical certificate in the case of an absence of three days or more, it is clear that the Hospital has the right to demand at any time to have an employee provide a medical certificate to provide proof of a disability. [emphasis added]

21 The exercise of that discretionary power to require the production of a medical certificate is directly related to the purpose of confirming that the employee is legitimately ill with respect to a particular claim for benefits. The appropriate question for the Hospital, with respect to the exercise of that discretionary power, is whether it requires a medical

19

certificate because it has a real doubt regarding the legitimacy of the employee's absences with respect to the particular absence for which the employee is seeking benefits.

Those paragraphs confirm that even with HOODIP’s impact on the collective

agreement, an employer retains a power to demand a medical certificate where

circumstances warrant. That discretionary power has been recognized as being

legitimately applied to demand proof or support for absences in situations of

excessive absenteeism. In St Joseph’s Health Centre v. CUPE, Local 1144,

supra, Arbitrator Abramsky held that where an employee has a history of

unacceptable attendance, an employer may have reasonable grounds for

concern about the legitimacy or frequency of such absences. In those situations,

an employer may have reasonable grounds to question “in depth” the reason for

each absence [see para. 27]. This was also recognized by Arbitrator Christie in

Eastern Regional Integrated Health Authority and Newfoundland Labrador

Nurses’ Union, supra, when he indicated that “in cases of an established pattern

of sickness . . . the Employer has the discretion to request a medical certificate

for periods of less than three days.” He also added that it is not a proper

exercise of discretion to require a medical certificate in every case. This

Employer has avoided that kind of “fettering of discretion” because it has

mandated managers to treat each case individually and has relaxed the

requirement to provide a SFW form for every absence for every employee in the

ASP. This Hospital’s managers will have to find a way to ensure consistent

application of their discretion while ensuring that each case is treated according

to its individual circumstances. This may mean that the SFW form may not be

demanded in circumstances where a satisfactory medical note may serve the

purpose of verifying the reason and durations of the absence.

The managerial discretion to demand a SFW form, other verification or, indeed,

no proof at all, is important and must be exercised on a case by case basis,

depending on the duration, nature and reason for the absence, as well as the

employee’s history. In particular, that discretion could take into consideration the

fact that some absences will be necessitated by the employer’s own Healthy

20

Workplace policy that directs an employee to remain off work for 24 hours after

symptoms have abated. The legitimacy of that policy is not being questioned.

However, because that employee might have been able to return to duty in any

workplace other than this hospital setting, discretion may be applied with regard

to whether such an absence may be factored into the thresholds for progression

into and through the ASP.

Given that this Employer has made the choice of using one SFW form for

everyone in the Program and yet conferred discretion upon managers “to

consider an individual’s circumstances”, the reasonableness of the information

being requested by this Employer in the SFW form must be looked at very

carefully. The cases recognize that “one size does not fit all”, [see Arbitrator

Surdykowski’s decisions in Hamilton Health Sciences and ONA, as well as

Canadian Bank Note, supra]. Therefore, the managers’ discretion must include

an assessment of whether all the information requested in the SFW form is

required of all employees enrolled in the ASP. For example, if there is no

suspicion about the legitimacy or duration of an absence due to a minor

illness/injury/medical issue, such as the flu, a tooth extraction or pink eye, it

would rarely be “reasonable” to require the employee to take up a physician’s

time to fill out the entire SFW form, especially if it is a condition that did not

require a doctor’s care. In those cases, a lesser form of verification or none at all

might be appropriate.

As for the SFW form itself, its contents warrant analysis. It is true that this

document is patterned after one that was accepted by the respected Ontario

Nurses’ Association (ONA) at Toronto East General Hospital. ONA is known for

its vigorous and principled advocacy on behalf of its members. However, that

alone cannot be determinative or binding on this Arbitrator or these parties.

Further, the Toronto East General’s form was not being analyzed in the Toronto

East General Hospital and ONA case, supra, for purposes of an ASP. It was

being used for purposes of determining accommodations and for employees

receiving short term disability payments for absences of five days or longer. In

21

addition, the SFW form that this Hospital is using is not exactly the same as the

one used at Toronto East General Hospital. Therefore, this Employer’s SFW

must be examined in its own right.

Taking all the evidence and submissions into consideration, it must be concluded

that some of the information requested on the SFW form for the purpose of

“assisting” employees goes beyond the bounds of reasonableness for an ASP.

This conclusion does not suggest that this Employer’s OHS Department does not

take its work with regard to the ASP seriously or that it should not assist

employees in achieving optimal health and improved attendance. The evidence

has shown that the OHS Department wants to take on an active role in assisting

in the medical care of employees who are having absenteeism issues. There is

nothing wrong with this, if the employee wants this assistance. Employees might

be well advised to accept that assistance. However, the key is that the employee

must agree to such help. The case law is clear that an employer steps over the

bounds of propriety and reasonableness when it attempts to engage in the

private relationship between an employee and his/her physician. In Tilbury

Assembly, supra, Arbitrator Crljenica held that an employer “may require an

employee to provide evidence that is “reasonable in the circumstances” to

support an absence and the employer can choose whether to require the

employee to produce evidence, but that an employer might only demand

evidence that is reasonable in all the circumstances. He specifically said,

“Reasonableness does not include an assessment by the employer as to the

treatment the employee should seek”, [see p. 380]. This was the same

conclusion reached by Arbitrator Kanee in Red Deer College, supra, where he

relied on the following quote from Arbitrator Sims in Peace County Health1:

157 . . . .the employer is overreaching its management's rights when it seeks to impose a right to contribute to or participate in an employee's health care decision making to help them get better. . . . . . Accepting employment, even with income maintenance plans, does not entail an encroachment on ones right to make ones own medical decisions in

1 [2007] A.G.A.A. No. 17, LAX/2007-341, 89 C.L.A.S. 107

22

privacy and without the employer's help. Other reasons may justify compromising that privacy, but the employer's desire to become "part of the employee's health care team" does not.

The Employer’s evidence was that the Occupational Health and Safety

Department wants to be able to assess the adequacy of the care being given to

employees in the ASP and ensure that the best options for treatment are

explored. That is why the SFW form asks for the physicians to indicate that the

treatment plan and that their care is “based on current best practices” and to list

the “area of specialty” for a referral. However, seeking such information and

offering such interventions goes beyond what is considered permissible, without

the patient’s consent. Ms. Morgan testified that the OHS Department does get

involved in assisting employees with health concerns when requested. This may

be very beneficial for the employees. Impressive examples were given of how the

OHS Departments has helped to improve individuals’ attendance. In those

situations, the key is that the assistance comes at the employee’s request. If the

employee wishes to advise the OHS Department of the area of specialty of any

physician s/he is seeing, that is the employee’s right, but s/he should not be

obliged to reveal this. The fact that an employee is enrolled in the ASP

progression does not deprive the employee of the right to manage his/her own

health as s/he chooses in the privacy of his/her own doctor/patient relationship.

Further, since the Hospital does not want or need diagnostic or medication

information, it is inappropriate to request information about a “Treatment Plan” or

the “Responses to Treatment.” Those questions are likely to reveal diagnostic or

medication information. Such information is not requested in the Toronto East

General form, nor did this Employer provide sufficient rationale to justify its use in

an Attendance Support Program. Therefore, those three aspects of the SFW

form must be removed. However, the Employer is entitled to ask if a treatment

plan has been prescribed, see Central Care Corp and CLAC, supra, at para. 28.

The consent on the SFW form must also be addressed. The wording of the

consent indicates that the employee is authorizing his/her doctor to disclose

23

information regarding the current injury/illness for the purposes of “supporting

[the] absence and/or supporting [the] medical restrictions regarding [the] ability to

work.” First of all, that consent must be strictly construed and applied. The

consent cannot be applied to any other purpose. Therefore, the information

requested in the form cannot and should not be sought unless the employee’s

attendance record or the specific absence is such that the need to support the

absence is warranted or clarification is required in order to deal with the absence

or with the medical restrictions regarding the employee’s ability to work.

Secondly, the form promises that the OHS Department will advise the employee

if the supplemental information is required from the doctor after the completed

form is submitted. The Occupational Health and Safety Department has been

advising employees when additional information and/or clarification has been

sought from doctors. This is appropriate. However, for the consent to be

meaningful, the employee should be advised that additional information is being

requested and why it is being requested before the doctor is contacted directly.

That will allow the employees to revoke their consent “in writing” if they so

choose. To advise employees after the fact makes the ability to revoke the

consent academic.

Further, if further clarification is being requested of a doctor, the OHS

Department must pay heed to the caveat set out in the Hamilton Health

Sciences, supra, case at para. 32:

It is only where the employer has a statutory or collective agreement right to more information, or where the employer has reasonable cause to suspect the genuineness, accuracy or quality of the information provided to substantiate an absence, that it is entitled to additional information.

This means that the OHS Department should only seek further information where

there is a specific reason to do so. Reasonable cause will include the factors set

out in Hamilton Health Sciences, supra, as well as concerns about the length of

absence and opportunities for an early, safe and appropriate return to work.

Therefore, to avoid misunderstandings in the use and application of the Form, it

24

should be amended to indicate: “This consent is granted on the understanding

and condition that I will be advised in advance by the OHS Department each time

that it will be contacting my physician in relation to this current absence from

work and why such contact is being made.” This finding is consistent with my

earlier decision in Central Care Corp. v CLAC, supra, which also followed the

decision in Hamilton Health Sciences, supra.

The Union has also voiced strong objection to the thresholds for entry into and

exiting this Hospital’s Attendance Support Program. In particular, the Union is

frustrated over the fact that employees at Steps 1 and 2 have to achieve

attendance that is equal to or even below the thresholds for two consecutive six-

month periods in order to be removed from the Program, thereby making it much

harder to exit than to become enrolled in the ASP. Six months of below threshold

attendance is what can trigger enrollment in the Program. Further, employees at

Steps 2, 3 and 5 can only lower their levels by one step if they achieve two

consecutive six-month periods of below threshold attendance and can only exit if

they manage to achieve 18 months of attendance below the threshold. The

Union calls this “unreasonable, unbalanced and unfair.” The Employer justifies

the thresholds and this “progression” on the basis of the comparators it has

studied and the attendance statistics in this Hospital. However, as the Employer

pointed out, there are many designs available for ASPs, with different

expectations of attendance and different patterns for progression and release.

This particular one does have some aspects of inconsistency, but it does have

consistency as well. For example, it takes 12 months to get to Step 2 and a

person can be out in 12 months. Further, a person can take 18 months to get to

Step 3 and then exit in 18 months. On the other hand, it only takes six months to

get into the program at Step 1, but takes 12 months to get out. The better

scenario of “inconsistency” from the employee’s perspective is that s/he might get

to Step 4 in 24 months, but could be removed after 18 months. This is how it

works:

Step 1 Managers have discretion about whether a person gets enrolled or not. - 6 months to get in - 12 months to get out

25

Step 2 - 12 months to get to Step 2 - 12 months to get out Step 3 - 18 months or longer to get to Step 3 - can be removed after 18 months Step 4 - 24 months or longer to get to Step 4 - can be removed after 18 months This Program could be designed differently, with different thresholds and different

steps or triggers for progression and/or removal. The Employer has promised to

review the thresholds and the patterns as it develops more experience with the

Program and its application in this workplace. However, it is not an arbitrator’s

role to design a better pattern or to veto one if there is an option that s/he thinks

might be better. The arbitrator’s role is to assess the Program’s reasonableness.

This was recognized in York University and YUSA, supra, wherein Arbitrator

Surdykowski advised:

37. There is nothing wrong with establishing a threshold for entry into an attendance management program. A threshold for entry is both fundamental to the proper structuring and essential to the proper administration of an attendance management program. An appropriate threshold for entry operates as an objective standard against which employee absenteeism can be measured and satisfies the KVP test. The management right to establish an attendance management program necessarily includes the right to establish an absenteeism threshold which triggers the application of the attendance management program.

38. Many attendance management program decisions focus on the threshold for being entered into the program. The cases make it clear that there must be a rational basis for an attendance management program threshold, but that there is nothing prima facie unreasonable about a triggering threshold that applies across all of an employer’s occupational groups, whether or not it is tailored or tied to an average or other rate of absenteeism within any of the employer’s occupational groups. Few decisions have considered the reasonableness of standards for moving backwards and eventually exiting an attendance management program and those that have are case specific and offer little general guidance. . . . . 39. An attendance management program which is prima facie reasonable can be challenged on the basis that it is not actually reasonable. But such a challenge must be based on evidence, not on suspicion or surmise.

The thresholds and patterns of progression in this ASP have been rationally

constructed and are objectively supportable in terms of past attendance

26

experiences at this Hospital. They are also comparable to other hospitals in the

Toronto and surrounding areas. This Hospital has undertaken to review these

thresholds to see if they remain “reasonable” as attendance is better monitored

and distinctions are better recorded to identify whether absences are related to

WSIB, culpable absences and other reasons outside of the scope of the ASP’s

concern. However, at the present time and based on the evidence presented, it

cannot be concluded that the Union has demonstrated that the thresholds for

entry, progression or exit for the ASP are unreasonable. Therefore, this aspect

of the grievance fails.

Conclusion and Summary

This Employer has the right to have initiated and implemented an

Attendance Support Program.

The thresholds for entry and progression through the Program have not

been shown to be arbitrary or unreasonable. They have been upheld.

The Statement of Fitness for Work has been ordered to be modified by

i) removing the request for an attending doctor to identify the “area of

specialty” for a referral to a specialist;

ii) removing the confirmation that the doctor’s care is “based on current

best practices”; and

iii) removing the sections dealing with “Treatment(s)”, dates and

“Responses to treatment”, but allowing a section to indicate if a treatment

plan has been prescribed.

The Consent portion of the Statement of Fitness for Work should be

revised to indicate that employees will be advised before the OHS

Department seeks “supplementary information” from the attending

physician after the Form has been completed.

The Statement of Fitness for Work can be demanded from individual

employees in the ASP where circumstances warrant. However, where

less intrusive but objective medical information is available or where there

is no basis to question the duration or reason for the absence, all the

information sought in the Statement of Fitness for Work may be

27

unnecessary. Excessive absences may constitute a justification to

request verification. In all situations, the managerial discretion should be

exercised to seek the minimum information necessary to objectively verify

the legitimacy of the absence.

When the managers are exercising their discretion about when or whether

to require a Statement of Fitness for Work form from an employee enrolled

in the Program, the managers must have regard to the nature, duration,

frequency and reason for the absence, including whether it was for

medical reason, whether it was mandated by the Hospital’s Healthy

Workplace Policy and/or at what stage the person is at in the ASP. Any

blanket or standardized pattern of requiring the form would be a fettering

of the important discretion mandated by the arbitral case law and by the

ASP itself. At the same time, similar situations should be treated equally.

The Occupational Health and Safety Department plays an important role in

the administration of the Attendance Support Program. It may also serve

a very useful and valuable role in assisting employees in the improvement

of their health and in achieving better attendance. However, without a

request and the explicit consent of an employee, the Occupational Health

and Safety Department cannot insert itself into the relationship between an

employee and his/her doctor. Therefore, the OHS Department cannot

solicit supplementary information beyond what is completed by a doctor in

the revised Statement of Fitness for Work for the purpose of seeking to

advise an employee about other options for treatment unless the

employee specifically asks for such assistance.

28

Accordingly, this policy grievance is allowed in part. I retain jurisdiction with

regard to implementation.

Dated at Toronto this 13th day of July, 2016

Generated by CamScanner

_____________________________

Paula Knopf - Arbitrator

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APPENDIX A

30

APPENDIX B

Attendance Support Step Progression Process Flow Chart

FULL-TIME STAFF: IN EXCESS OF 3 SEPARATE INCIDENTS AND/OR 45 HOURS IN A 6-MONTH REVIEW PERIOD

PART-TIME/CASUAL STAFF: 3 SEPARATE INCIDENTS IN A 6-MONTH REVIEW PERIOD

Step 1 - Enrolment Review attendance over past 6 months

Discussion initiated with supports and resources offered Meeting and letter

↓

Step 2 – Concern Review previous 6 months’ attendance

Consider any relevant and mitigating factors Manager may require employee to provide Statement of Fitness to Work to OHS for

each and every sick absence Meeting and letter

↓

Step 3 – Continued Concern Attendance Support Team is activated Review previous 6 months’ attendance

Consider any relevant and mitigating factors Employee to meet with Occupational Health & Safety Nurse

Manager may require employee to provide Statement of Fitness to Work to OHS for each and every sick absence

Meeting and letter

↓

Step 4 – Grave Concern / Final Notice Attendance Support Team meets

Review previous 6 months’ attendance Consider any relevant and mitigating factors

Manager may require employee to provide Statement of Fitness to Work to OHS for each and every sick absence

OHS conducts full medical chart review with Occupational Health Physician Meeting and Final Notice letter

↓

Step 5 – Status of Employment Decision Consult on overall attendance record with senior department head and Attendance Support Team

Review previous 6 months’ and overall attendance (30 months) Any reasonable indication of significant and sustained future attendance improvement?

Disposition

Status maybe changed: Employee maybe reduced from Full-time to Part-time

(non-benefit) status or Termination

For removal or stepping down in the Program see “Recognition/Removal from Program” on page 13.

Attendance Support Program – Leaders’ Manual – May 2016 Page: 12