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December 7, 2006 |
Issue No. 1 |
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TEACHERS ON PREGNANCY LEAVE ARE ENTITLED TO SUPPLEMENTARY EMPLOYMENT BENEFIT TOP-UP DURING NON-TEACHING PERIODS, ARBITRATOR HOLDS Are teachers entitled to SEB top-up benefits when they are on pregnancy leave during non-teaching periods such as summer and Christmas break? An arbitrator has ruled that to arrive at a negative answer would require clear, express language. Details below. See also section 16.6 in Leading Cases on Labour Arbitration. WITHOUT GOOD REASON, EMPLOYER NOT ENTITLED TO GO BEYOND ITS STANDARD FORM MEDICAL CERTIFICATE TO REQUEST ADDITIONAL DETAILS, 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. See also section 23.2.2 in Leading Cases on Labour Arbitration. |
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— DETAILED REPORTS — |
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TEACHERS ON PREGNANCY LEAVE ARE ENTITLED TO SUPPLEMENTARY EMPLOYMENT BENEFIT TOP-UP DURING NON-TEACHING PERIODS, ARBITRATOR HOLDS The Facts: The collective agreement between the Elementary Teachers' Federation of Ontario and the Hastings and Prince Edward District School Board provided for a Supplementary Employment Benefit top-up to teachers on pregnancy leave. Under the current collective agreement, a teacher on pregnancy leave was entitled to 2 weeks of SEB at 100 percent of regular salary while waiting for E.I. to kick in. Subsequent to this, the teacher was entitled to 6 weeks of SEB top-up to 100 percent and 9 weeks of SEB top-up to 60 percent. The employer's practice was to pay the initial 2-week SEB during the E.I. waiting period irrespective of the period of the year in which the pregnancy leave fell, but to pay the 6-week and 9-week top-up only if the pregnancy leave fell within teaching periods. Previously, under the agreement that preceded the current collective agreement, a teacher on pregnancy leave received 2 weeks of SEB at 95 percent of regular salary while waiting for E.I. to kick in; the member could, in the alternative, access sick benefits for the post-partum 6 week period following delivery. The employer never paid sick benefits during non-teaching periods. Article 32.04.06 of the collective agreement provided: "For Pregnancy Leave only, and in lieu of the option to access sick leave for the post-partum period of recovery in accordance with 32.02.05, a Teacher who is eligible for E.I. may opt for a Pregnancy Leave SEB top-up; such top-up may be in addition to the SEB which is available for the two-week waiting period." The same article provided that "Pregnancy leave SEB top-up is based upon and is subject to Employment Insurance (E.I.) Regulations," and that the "top-up shall provide for the difference between what a teacher receives from E.I. and 100 percent of her regular salary for the maximum of the six week post-partum period of recovery," and thereafter, "[f]or the nine (9) weeks of Pregnancy Leave following the two-week waiting period and the six (6) weeks of post-partum recovery ... the Employer shall provide ... top-up equal to the difference between sixty (60) percent of the Teacher's weekly salary and the weekly amount of the E.I. benefit." The union filed a policy grievance claiming that SEB top-up should be paid regardless of whether the pregnancy leave fell within a teaching or a non-teaching period. The Arguments: The employer argued that the language of the current collective agreement indicated that teachers on pregnancy leave were not entitled to a top-up benefit, other than the two-week top-up, if the leave occurred during a non-teaching period. This position, the employer claimed, was strengthened by the use of the language, "and in lieu of the option to access sick leave for the post-partum period of recovery in accordance with article 32.02.04" in the agreement. Such language, it argued, meant that teachers had the option of accessing either sick leave benefit or the SEB top-up; and since sick leave was not available during a non-teaching period, the SEB was also not available: the collective agreement linked eligibility to the top-up to eligibility for sick leave. The union countered that the language of the collective agreement did not support the employer's interpretation. It submitted that the arbitrator should not interpret the agreement in a manner such that a pregnancy leave benefit would be applied differently based on the timing of when the leave was taken. In the absence of clear, unequivocal language indicating otherwise, the union asserted, a collective agreement benefit such as the SEB top-up should be administered equitably. The Decision: Arbitrator Louisa Davie allowed the grievance. She found that the language of the collective agreement entitled a teacher to a top-up benefit if the teacher was eligible for E.I. She characterized SEB as a "top-up benefit paid once statutory entitlement to E.I. is established, not as an income replacement, but in recognition that while on pregnancy leave the teacher does not receive a salary." In short, the SEB was not based on either receipt of salary or time frames during which the teacher would normally teach. Davie held that the language in Article 32.04.06 — "in lieu of the option to access sick leave" —allowed an employee the option, during the six-week period of post-partum recovery, of either taking sick leave benefit or SEB top-up, not both. Although the collective agreement allowed a teacher to opt for sick leave benefit during the six-week post-partum period, the teacher could instead forego the sick leave and claim the top-up. In Davie's view, the use of the "in lieu of the option" language gave the teacher a choice of one option "instead of" or "in place of" the other. Therefore, the two benefits were separate and distinct. Further, Davie observed that adoption of the employer's position would lead to anomalous results in that teachers commencing pregnancy leave at different times in the year would receive top-up piecemeal. For instance, a teacher who commenced leave at the beginning of June would receive 100 percent SEB top-up for the two-week E.I waiting period, would receive a further 100 percent top-up for the rest of the teaching period, would not receive anything for the rest of the summer, and would receive what was left of the nine-week 60 percent top-up when school resumed in September. Finding that, under the language of the collective agreement, a teacher's entitlement to top-up was clearly linked to, and based upon, eligibility for E.I., Davie concluded that, in the absence of express language limiting the availability of the top-up benefit, there was no basis to imply a restriction on the right to receive SEB top-up during a non-teaching period. Davie reasoned: "[T]he language of this collective agreement entitles teachers to the top-up benefit if the teacher is eligible for E.I. The top-up benefit is based on statutory entitlement to E.I. It is not based on either receipt of salary or time frames during which the teacher would normally teach. The Employment Insurance Act entitles teachers to E.I. pregnancy leave benefits during non-teaching periods. The teacher is therefore entitled to the negotiated top-up benefit for the period during which the teacher receives E.I. subject only to the limitations on amounts and number of weeks that the parties have agreed upon in Article 32.04.06. Entitlement is not qualified by reference to the time when pregnancy leave is taken, and entitlement to the top-up benefit therefore is not restricted to a teaching period." In the end, Davie held that it made no sense to interpret the collective agreement in a manner that meant that the benefit was applied differently at different times of the year. To do so, clear, express language to deny the SEB top-up solely on the basis of the timing of pregnancy leave was required. Holding that such clear language was lacking in the collective agreement, Davie concluded: "There is no specific, explicit language to indicate that teachers are disentitled to the payment of the top-up benefit during non-teaching periods. The benefit is not restricted or limited to time frames which fall within the school year ... or teaching periods." Comment: Davie's view of SEB top-up as related to E.I. receipt rather than salary receipt and as a benefit separate and distinct from a sick leave benefit is consistent with prior awards in Elementary Teachers' Federation of Ontario v. Avon-Maitland District School Board (2004), 134 L.A.C. (4th) 23 (P.C. Picher); Elementary Teachers' Federation of Ontario v. Rainey River District School Board, [2005] O.L.A.A. No. 129 (QL) (Albertyn); and Elementary Teachers' Federation of Ontario v. Greater Essex County District School Board, [2005] O.L.A.A. No. 680 (QL) (Dissanayake), upheld by the Ontario Superior Court on judicial review, [2006] O.J. No. 2604 (QL). Essentially, Davie applied the ruling in Avon-Maitland by Arbitrator Pamela Picher that, "[i]n the absence of language expressly or impliedly stating an intention to deny the payment of the six-week top up benefits during non-teaching months, the arbitrator must conclude that there is no basis for imposing such distinction." She adopted Picher's reasoning in that case that, in the absence of express language to the contrary, and unlike regular sick leave benefits, the "SEB Plan benefit is a pregnancy leave benefit and is not designed to replace income." Rather, Picher reasoned: "Entitlement to the SEB benefit is not tied to otherwise being entitled to receive salary during that period, i.e., teaching months. It is premised, instead, on being on pregnancy leave. It is a pregnancy leave benefit, not an income replacement benefit." Agreeing with this statement in the present decision, Davie stated: "To this I would add ... that, as a matter of collective agreement interpretation and in the absence of clear, unequivocal language which would dictate such a result, an arbitrator should not interpret a benefit in a manner which means that it will be applied differently based merely on the timing of when pregnancy leave is taken. Unless clear, unequivocal language indicates otherwise, a collective agreement benefit of this nature should be administered as equitably as possible." For further discussion of the rules of contract interpretation as applied to the terms of a collective agreement, see section 16.6 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). Case Name: Elementary Teachers' Federation of Ontario v. Hastings and Prince Edward District School Board |
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WITHOUT GOOD REASON, EMPLOYER NOT ENTITLED TO GO BEYOND ITS STANDARD FORM MEDICAL CERTIFICATE TO REQUEST ADDITIONAL DETAILS, 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 were 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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