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November 14, 2006 |
Issue No. 78 |
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WITHOUT GOOD REASON, EMPLOYER NOT ENTITLED TO GO BEYOND ITS STANDARD FORM MEDICAL CERTIFICATE TO REQUEST ADDITIONAL DETAILS OF TREATMENT, SYMPTOMS, AND FUNCTIONAL LIMITATIONS, ARBITRATOR RULES A British Columbia arbitrator ruled that the Surrey School Board acted unreasonably when it refused to process a depressed teacher's application for a partial medical leave unless he provided further details of, among other things, his diagnosis, treatment and symptoms, and functional limitations, in addition to what had initially been provided to the Board in its standard form medical certificate. While acknowledging that employers have a general right to reject medical certificates which "fail to disclose sufficient information to establish the grievor's entitlement to the leave sought and the benefit claimed," the arbitrator ruled that, in the absence of any reasonable basis for questioning the bona fides of the grievor's condition, the school board's requests for additional medical information that went beyond its own form of medical certificate in this case were "unduly intrusive" and "unreasonable." Details below. EMPLOYER MAY DISCIPLINE WITHOUT REGARD TO DUTY TO ACCOMMODATE WHERE DISABILITY NOT ESTABLISHED, ARBITRATOR RULES An Ontario arbitrator has upheld the discharge of a 10-year manufacturing plant employee for working in an intoxicated state. Rejecting the union's argument that a past incident of alcohol-related misconduct triggered a duty on the employer to investigate whether the grievor's misconduct was linked to an addiction, the arbitrator ruled that, in the absence of any evidence indicating that the grievor was in fact an alcoholic, the duty to accommodate did not arise. "[I]n the absence of any evidence clearly establishing that the grievor suffers from a condition properly regarded as a 'handicap' within the meaning of the Code," the arbitrator ruled, "I am unable to accept that reinstatement is justified in order to ascertain whether or not the grievor is so afflicted." Details below. |
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— DETAILED REPORTS — |
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WITHOUT GOOD REASON, EMPLOYER NOT ENTITLED TO GO BEYOND ITS STANDARD FORM MEDICAL CERTIFICATE TO REQUEST ADDITIONAL DETAILS OF TREATMENT, SYMPTOMS, AND FUNCTIONAL LIMITATIONS, ARBITRATOR RULES The Facts: In summer 2004, a longtime elementary school teacher applied for a 40 percent reduction in his teaching schedule on an indefinite basis under Article 39.91 of the British Columbia Teachers' Federation's collective agreement with the Surrey School District, which provides: "Where a full-time employee produces a medical certificate stating that the employee, while medically unable to work full-time, is capable of working part-time, the employee's assignment may be reduced or the employee may be reassigned to another position where it is practical to do so." The grievor duly submitted a medical certificate in the form required by the employer and completed by his psychiatrist, indicating that he needed the reduced schedule to deal with "chronic depression, anxiety disorder, and diabetes mellitus." On the advice of a "medical consultant" retained by the employer's third-party insurer, the school board informed the grievor that it was unable to determine whether his condition was "a bona fide illness or ... a chronic condition," and asked him for details of his medications, psychotherapy, current symptoms and functional limitations. The grievor refused to answer the questions, but provided a second medical certificate from his family doctor indicating that he was under the care of a psychiatrist, and a letter from his psychiatrist in response to the query about his functional limitations, which confirmed that the grievor was "not able to manage a full teaching load at this time," and that in the psychiatrist's opinion the "40% reduction in workload ... [is] a reasonable balance under the circumstances." On November 26, 2004, the school board denied the grievor's partial medical leave application. The grievor reapplied for an "indefinite" partial medical leave in 2005, but on the advice of an independent occupational health and safety consultant, the school board requested additional medical information including a detailed diagnosis, current symptoms and functional limitations, and "how they preclude the employee from working full time," as well as a prognosis, and an explanation of the need for accommodation. The grievor again refused to answer the questions, and the school board refused to process his application. The British Columbia Teachers' Federation filed a grievance challenging the school board's denial of the grievor's partial leave application. The Arguments: The BCTF argued that the grievor's medical certificates supplied the school board with all the information it legitimately needed. In this regard, the Federation relied on three prior arbitration awards between the parties that held that, although the employer could require medical certificates on a routine basis for leave applications, it was not entitled to details of the employee's medical symptoms or specific diagnosis: see British Columbia Teachers' Federation v. British Columbia Public School Employers' Association, [2004] B.C.C.A.A.A. No. 177 (QL), Lancaster's Human Rights & Workplace Privacy E-Bulletin, Issue No. 29 (Taylor); BCTF v. School District No. 59 (Peace River South), [2002] B.C.C.A.A.A. No. 168 (QL), Lancaster's Disability and Accommodation Reporter, May/June, 2002 (Korbin); and BCTF v. School District No. 36 (Surrey), [2000] B.C.C.A.A.A. No. 219 (QL), Lancaster's Education Employment Law News, September/October, 2000 (Munroe). With no reasonable basis to suspect that the grievor's illness was anything but bona fide, the Federation contended, the school board was not entitled to any additional medical information and ought to have approved the grievor's partial medical leave. The school board maintained that its requests for additional medical information were entirely reasonable, and that the grievor's failure to provide it with sufficient information made it impossible to evaluate his entitlement to partial medical leave. In this regard, the school board emphasized, Arbitrator Don Munroe's 2000 award between the parties specifically provided that "it is clear that the submission by a teacher of a proper 'medical certificate' does not preclude the School Board from further investigation where circumstances warrant." The Decision: Arbitrator Colin Taylor allowed the grievance, ruling that although the school board had a right to seek additional medical information in certain circumstances, it was not entitled to insist on knowing the details of the grievor's treatments or symptoms, or even further information about his functional limitations, in the specific circumstances of this case. Taylor rejected the Federation's position that the Munroe and Korbin awards allowed the school board to request additional medical information only if the bona fides of the grievor's illness was suspect. After reviewing the arbitral case law, Taylor wrote: "The authorities make it clear that, subject always to the provisions of the collective agreement, an employer is entitled to request additional information where the issue is whether the employee has provided sufficient information to support application for the benefit. In such circumstances, the question will be whether the employer's request is reasonable." The fact that the school board never questioned the bona fides of the grievor's illnesses did not "of itself preclude the employer from making further inquiries," Taylor added. Taylor concluded that Article 39.91 required a medical certificate "which provides sufficient information for the employer to determine the entitlement to a partial medical leave," and accordingly, the school board was entitled, "in appropriate circumstances, [to] reject a certificate as inadequate." However, Taylor ruled that the school board's rejection of the grievor's medical certificates in this case on the basis that it "could not determine if he had a bona fide illness or a chronic condition," was "not only unreasonable; it makes no sense." It was impossible to draw any meaningful distinction between "a bona fide illness and a chronic condition," Taylor reasoned, asking: "Would a chronic disease for which a psychiatrist recommended a reduced workload be, in and of itself, a sufficient basis to deny a medical leave?" Taylor also questioned the school board's medical consultant's "qualifications to challenge the diagnosis of a qualified psychiatrist," noting that the employer never challenged the bona fides of the grievor's illness or the accuracy of the medical information provided in the certificate. In the circumstances, Taylor ruled, "there is no reasonable basis to suggest the grievor did not have a bona fide illness," and accordingly "the basis on which the employer denied the grievor's application for partial medical leave ... was not reasonable." Taylor determined that the employer was not entitled to know details of the grievor's medical treatment, and further, that its request for a specific diagnosis and actual symptoms was "unduly intrusive and contrary to the so-called 'trilogy' of awards dealing with the permissible content of the certificate." As for the employer's request for other information, such as prognosis and functional limitations, since the grievor's request was for only a partial, rather than a permanent, medical leave, "the entire premise of [the employer's consultant's] report [was] flawed and her recommendations on which the employer based its decision ... are unreliable." Taylor concluded that the grievor's medical certificates established that he was prima facie entitled to the requested leave, and that the employer was entitled to request additional information only "if it believed, acting reasonably, that the certificates failed to disclose sufficient information to establish the grievor's entitlement to the leave sought and the benefit claimed." Allowing the grievance, Taylor declared: "For all of the foregoing reasons, I am compelled to conclude that, on both occasions, the employer's requests for additional information were, in all of the circumstances, unreasonable." Comment: In the present award, Arbitrator Taylor accepted that an employer has a legitimate interest in determining the bona fides of an employee's illness and is entitled to question the adequacy of information in a medical certificate, but at the same time he made it clear that the employer's request for more detailed information must be warranted in the circumstances. In this regard, Taylor adopted Arbitrator Munroe's statement, from his 2000 award, that "[w]hether further investigation is warranted, and the proper nature and degree of such investigation, including the degree of medical intrusion, can only be determined case by case." Thus, in his 2004 award upholding the school board's right to require medical certificates in support of a medical leave application, Taylor ordered the employer to delete questions requesting detailed information about the employee's physical and cognitive functional restrictions and non-medical barriers to recovery, ruling that these questions went "beyond what is reasonably required on a routine, general medical certificate." On the other hand, in the same award, Taylor observed that, in his view, detailed follow-up questions regarding an employee's specific physical and cognitive limitations and restrictions could be justified where the initial medical certificate (and the physician's recommendations about the need for part-time or full-time leave) failed to provide an adequate explanation for the leave. However, even in those circumstances, Taylor held, a request for follow-up information about functional limitations would be appropriate only after the employee was approached, since "the first line of inquiry as to whether [an employee] is capable of reduced, modified or alternative duties should be made directly with the [employee]." In contrast, in CUPE, Local 728 v. Surrey School District No. 36, [2006] B.C.C.A.A.A. No. 47 (QL) (see Lancaster's Education Employment Law News, March/April, 2006), Arbitrator Stan Lanyon, in upholding a school board's policy requiring medical certificates for all absences exceeding 20 days, concluded that specific questions concerning the employee's general course of treatment, medical follow-up, expected return-to-work date, and required return-to-work accommodations struck the appropriate balance between the employer's interest in controlling absenteeism and the employees' privacy concerns. For further discussion of the employer's right to access employee medical information, see section 23.2.2 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). Case Name: British Columbia Teachers' Federation v. Surrey School District No. 36 |
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EMPLOYER MAY DISCIPLINE WITHOUT REGARD TO DUTY TO ACCOMMODATE WHERE DISABILITY NOT ESTABLISHED, ARBITRATOR RULES The Facts: A machine operator with ten years' service at a southern Ontario manufacturing plant was fired in November 2005 for breaching the company's policy of "zero tolerance" for alcohol and drugs in the workplace, which provided that "anyone working under the influence will be automatically terminated." After speaking briefly with the "loud and agitated" grievor around 3 pm on November 15, 2005, the grievor's supervisor noticed that the grievor had left unattended a container full of molten metal, in direct contravention of the plant's safety policies. Suspecting that the grievor was "under the influence," the supervisor immediately relieved him from duty and escorted him to a meeting with management and union representatives. Other witnesses agreed that the grievor appeared unsteady on his feet, that his speech was slurred and incoherent, and that he smelled of booze. The grievor was sent home in a taxi, and his employment terminated the next day for violating the plant's "zero tolerance" drug and alcohol policy. Following his second termination, the grievor went back into treatment. The United Steelworkers of America, Local 4153 launched a grievance challenging his dismissal. The Arguments: The company maintained that it had just cause to terminate the grievor's employment for breaching its clear and consistently-enforced "zero tolerance" alcohol policy, especially in light of the fact that he occupied a safety-sensitive position in an "extremely hazardous" workplace. Emphasizing that the grievor never testified at the hearing, the employer argued that there was no evidence that either explained his misconduct or demonstrated any rehabilitative potential on his part. In particular, the employer insisted that it had no basis upon which to conclude that the grievor was an alcoholic, and that in the absence of any pre-dismissal request for help on the grievor's part, it had no duty to accommodate him. The union submitted that the company breached the Ontario Human Rights Code by dismissing the grievor without any consideration of whether his misconduct was caused by an addiction. Acknowledging that there was "no evidence ... upon which [the arbitrator] can determine that the grievor suffers from alcoholism or that he is receiving treatment for alcoholism," the union argued that the grievor's past substance abuse triggered an obligation on the employer's part to investigate whether the grievor's misconduct was related to a disability, and that its failure to do so breached his right to accommodation. Arbitrator Mary Lou Tims dismissed the grievance, ruling that the employer had ample cause to terminate the grievor's employment, and that in the absence of any evidence establishing that the grievor was in fact an alcoholic, the duty to accommodate never arose. Apart from the accommodation issue, there was no question that the company had just cause to terminate the grievor's employment, Tims ruled, citing the company's clearly communicated "zero tolerance" alcohol policy, the gravely dangerous nature of the workplace, and the grievor's failure to testify to any illness or disability that might mitigate his guilt. Rejecting the union's submission that the company had a duty to investigate whether the grievor's misconduct was caused by an addiction, Tims wrote: "I cannot find that the company bears a statutory obligation to accommodate the grievor in these circumstances, where there is no suggestion that the claim of handicap is anything but speculative at this point." Tims concluded that the duty to accommodate did not arise in the circumstances, stating: "[I]n the absence of any evidence clearly establishing that the grievor suffers from a condition properly regarded as a 'handicap' within the meaning of the Code, I am unable to accept that reinstatement is justified in order to ascertain whether or not the grievor is so afflicted." In the result, Tims declared that " the company has established on all of the evidence that the grievor was discharged for just cause, and in the absence of evidence of compelling mitigating factors, I am not convinced that there is any basis upon which my discretion to reduce such penalty would be properly exercised." Comment: Some arbitration awards have indeed held that, where the employer has some "knowledge or indication" that a misbehaving employee may have a substance abuse problem, it "has a duty to take reasonable steps to ascertain the nature and extent of an employee's illness before either disciplining or discharging the employee": see Society of Energy Professionals v. Ontario Power Generation, [2006] O.L.A.A. No. 169 (QL), Lancaster's Disability & Accommodation E-Bulletin, Issue No. 70 (Shime). As Arbitrator Joan Gordon observed in Canadian Auto Workers, Local 111 v. Coast Mountain Bus Co., [2004] B.C.C.A.A.A. No. 325 (QL) (see Lancaster's Disability & Accommodation E-Bulletin, Issue No. 41): "Where, as here, an employer is in possession of sufficient facts relating to the need for an accommodation, or has constructive knowledge of the need for an accommodation, the employer must initiate the search process [for an appropriate accommodation] even absent an employee's request." In this case, however, the union's failure to lead evidence indicating that the grievor was in fact an alcoholic undercut its case, leading the arbitrator to distinguish all of the arbitral authorities governing the duty to accommodate. For further discussion of the duty to accommodate an employee's substance abuse problem, see section 14.3.9 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). |
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