HomeMy WebLinkAboutUnion 12-10-15Between:
In the Matter of an Arbitration
BRUCE COUNTY EMS
(the Employer)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
On behalf of its Local 250
(the Union)
OCT 16 2012
Hamilton
Reqional Office
Re: Short Term Sick Benefit Claims - OPSEU File 2010-0250-0005
Appearances:
For the Employer:
For the Union:
4RAJ9W11NTIavAff-'Av JYJ' 0
Paula Knopf - Arbitrator
Chris Eames
Sherry Latouf
Martin 011ivera
Doug Harris
Tkim'11
The hearing of this matter was held in Kincardine, Ontario, on October 3, 2012.
The Union is grieving that the Employer is in violation of the Collective Agreement by
requiring bargaining unit employees to submit claims for Short Term Sick benefits to a
third party who has been engaged to assist with the administration and processing of
these claims. In the event that the Union's position is not accepted, the parties asked
this Arbitrator to remain seized with issues surrounding the details of the Forms being
utilized and the administration of the Short Term Sickness claims. The Employer has
also preserved its rights regarding the scope of the grievance. However, for the time
being, this Preliminary Award deals only with the threshold issue of whether the
Employer has the right under this Collective Agreement to require employees to submit
medical information to a third party in order to receive Short Term Sick benefits.
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The Collective Agreement provides various kinds of Health Insurance benefits to this
bargaining unit. The relevant provisions are:
18.01 The Corporation agrees to pay, on behalf of all eligible regular full-time
permanent employees, one hundred percent (100%) of the premium cost of the
insurance coverage unless otherwise stated below. The following benefits are
payable by the Insurer, not the Corporation, and shall be administered in
accordance with the terms, conditions, rules and regulations of the Insurer's
respective plans: (#29691 - Green Shield # G1053 - Co-operators)
a) Drugs
b) Extended Health Services ......
c) Life Insurance ......
d) Dental ......
e) Out of Province Coverage.......
Vision........
g) Employee Assistance Plan .......
18.05 Short Term Sick Leave Plan
The Corporation will provide, to eligible permanent full-time employees who have
completed three (3) months of their probationary period, a short term sick leave
plan.
a) Absences due to illness or injury, compensable by the Workplace Safety &
Insurance Board, shall not be charged against sick leave entitlements.
b) Each claim of sick leave shall be supported by a certificate from a qualified
medical practitioner provided, however, that such certificate shall not be required
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if the period of such absence is not more than three (3) days. On the fourth (4th)
day of illness in any calendar year, such certificate will automatically be required.
Each illness thereafter, in such calendar year, may require a doctor's certificate.
18.06 Long Term Disability (LTD)
Long Term Disability Insurance will provide income replacement to eligible
permanent full-time employees at the rate of seventy-five percent (75%) of
monthly income, subject to any carrier maximums (currently $5,000).... .
Coverage under the Long Term Disability Insurance shall be subject to the terms
and conditions governing master insurance plan or policy. ( #G1053 - Co-
operators)
For purposes of this aspect of the case, there are no facts in dispute.
Under this Collective Agreement, the Employer is responsible for the provision of Short
Term Sick Benefits. In order to assist it with the administration and adjudication of
claims, it has contracted with a third party, ACCLAIM, to process, manage and make
recommendations regarding the employees' claims. The Employer has issued an
Absence from Work Policy, setting out attendance expectations and the procedures to
follow in the event of absences. Included with the Policy are the forms that employees
are told to fill out for Short Term Claims for Absences. The Form is printed with logos of
both ACCLAIM and the Employer. The Form reads in part:
The County of Bruce requires that all absences of greater than 3 consecutive
days or over the 3rd occurrence in the calendar year must be approved with the
submission of this form. Submission of a medical note from a Physician will be
considered provided it includes the following information:
• Nature of illness
• Symptoms (& Functional limitations if any)
• Is the employee compliant with the prescribed treatment plan?
• Expected full-time return to work, regular duties: (month/day/year)
Please complete and return this form or a medical note to ACCLAIM Ability
Management by fax ... within five (5) days of the first day absent.
The Form asks employees to sign a consent authorizing his/her physician to release
medical information relating to the current absence to ACCLAIM. The Form also invites
employees to contact their "Ability Management Consultant" at ACCLAIM. The Union is
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objecting to the Employer's insistence upon the use of this Form and the fact that it has
to be submitted to ACCLAIM.
The Submissions of the Union
The Union argues that the Employer cannot ask an employee to do anything beyond
what the Collective Agreement requires which was said to be that they provide the
Employer with "a certificate from a qualified medical practitioner" after the fourth day of
absence. The Union submits that the Collective Agreement neither mandates nor
requires that the employees file any other information or fill out any forms, or that the
information has to be submitted to ACCLAIM in order for members of this bargaining
unit to receive benefits. The Union stressed that the parties have agreed to have third
party insurers administer claims only in Articles 18.01 and 18.06 for LTD and other
specified benefits. Given these specific provisions, the Union argues that the absence
of any similar acknowledgment of third party involvement in Article 18.05 must be read
as precluding the Employer's right to require employees to provide their medical
information to ACCLAIM.
Further, it was conceded that if the Collective Agreement had been drafted differently,
the Employer might be able to make a better case for its present practice. For example,
it was suggested that the Employer's case would be stronger if the clause read: "sick
leave shall be supported by 'documentation acceptable to the employer' or 'equivalent
to a note from a medical practitioner'." However, the Union argued that the current
language does not support the Employer's position. The Union considers the current
practice of requiring the ACCLAIM Form to be completed as a violation or amendment
of the Collective Agreement. The Union further argued that the Employer cannot
change the way it administers the Collective Agreement without bringing this to the
bargaining table first.
The Union stressed that it understands and accepts that the Employer has a legitimate
interest in ensuring that only valid claims for Short Term Absences are paid out.
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Further, the Union recognizes the employees' need to establish that the absences are
legitimate. However, the Union asserted that its members should not have to deal with
ACCLAIM. It was suggested that if the Employer has a problem with the sufficiency of
medical information being provided by employees to the Employer, it has the right to
seek further information and/or to withhold or refuse the requested payments. However,
the Union emphasized that it has not agreed to anything beyond the wording of Article
18.05. Therefore, it was argued that the Employer's requirement for any information
'beyond a "certificate of a qualified medical practitioner" violates the Collective
Agreement. In support of its position, the Union relies upon the following cases:
Niagara (Regional Municipality) and O.N.A. (Dan), 207 L.A.C. (4th) 423 (Slotnick); OLG
Point Edward Casino and Teamsters, Local 879 (Beaupre), 107 C.L.A.S. 334 (Jesin);
Northwest G TA Hospital Corp. (Pee/ Memorial Site) and S. E I. U., Local 204, 35
C.L.A.S. 386 (Whitaker); Insurance Corp. of British Columbia and C.O.P.E., Local 378,
101 C.L.A.S. 55 (Burke); Central Care Corp. and C.L.A. C., Local 302, 105 C.L.A.S. 141
(Knopf).
The Submissions of the Employer
The Employer pointed out that most of the case law in this area concerns the balancing
of rights between the employees' right of privacy and the employers' right to sufficient
information to properly administer sick leave provisions. It was suggested that this case
is unique because the case law does not appear to have dealt with an employer's right
to engage the assistance of a third party in the administration of a sick leave plan.
Accordingly, it was suggested that this right has been accepted or taken for granted in
the case law to date.
Further, the Employer stressed that the role of ACCLAIM in this situation is not that of
an insurer, as contrasted with the roles of third parties in Articles 18.01 and 18.06.
ACCLAIM is not responsible for the development of the Attendance Policy, or for the
payment or liability, for Short Term Sick Leave benefits; all of which remains the sole
responsibility of this Employer under its Management Rights provisions:
2.01 The Union acknowledges that the management of the operations and the
direction of the work force is fixed exclusively in the Corporation, therefore all
rights are retained by the Corporation except those specifically and expressly
abridged, delegated, granted, or modified by this Agreement and without limiting
the generality of the foregoing the Union acknowledges that it is the exclusive
function of the Corporation to:
a) maintain order, discipline and efficiency ....
c) operate and manage the business in all respects .... including the right to
determine:..... new and improved methods, procedures; purchase ... services
from any source acceptable to the Corporation.
2.03 The Corporation agrees that it will not exercise its function in Article 2 -
Management Rights in a manner inconsistent with the express provisions of this
Agreement.
The Employer stressed that it is simply using ACCLAIM's expertise to help with the
assessment and administration of Short Term Sick claims. Therefore, the Employer
describes ACCLAIM as acting as the Employer's agent while it [the Employer] retains
full responsibility for the benefits and continues to exercise its right to determine the
standards that should be applied regarding who should be paid benefits and under what
circumstances. It was acknowledged that if the Employer ever improperly withholds
benefits, or asks for inappropriate information, the employees retain the right to file a
grievance. But it was stressed that nothing in the Collective Agreement specifically
precludes this Employer from administering the Short Term Sick benefits plan with the
assistance of ACCLAIM or a third party. Further, the use of ACCLAIM was said to be
similar to contracting with an outside agency to assist with payroll or other services.
Since there is no prohibition on contracting out, and the management rights clause
allows for the use of outside services, this was said to be well within the Employer's
prerogative.
The Employer also argues that it is "irrelevant" that ACCLAIM is not mentioned in the
Collective Agreement. The Employer pointed out that the Collective Agreement does
not provide an absolute right to Short Term Sick benefits based on the filing of a
doctor's note. It was suggested that the only reason that Green Shield and the Co-
operators are mentioned in the Collective Agreement is that they are insurers who are
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responsible for the benefits, in contrast to ACCLAIM, who is simply an Administrator,
where the Employer remains liable for the benefit. The utilization of ACCLAIM was said
to be an efficient way to manage claims and avoid the unnecessary and sometimes
embarrassing steps of funneling information through managers and/or the HR
Department.
In support of its positions, the Employer relied upon the following cases: sanofi pasteur
and Communications, Energy and Paperworkers Union of Canada, Local 1701,
December 30, 2010 (Knopf); Service Employees International Union, Local I and
United Steelworkers (Barker), (2008) 174 L.A.C. (4th) 210 (Surdykowski); Canadian
Bank Note Company, Limited and International Union of Operating Engineers, Local
772, 2012 CanLI1 41234 (ON LA), July 6, 2012 (Surdykowski); Providence Care,
Mental Health Services and OPSEQ, Local 431, 2011 CANLII 6863 (ON LA), January
27, 2011 (Surdykowski); Kawneer Co. Canada Ltd. and International Association of
Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 835, (2002) 100
L.A.C. (4th) 129 (Luborsky); Corporation of the Town of Oakville and Oakville
Professional Fire Fighters' Association, (Albertyn), March 12, 2012.
The Decision
In almost all the cases cited above, there is no discussion about whether an employer
can engage a third party to assist in the administration of one of the benefits it provides.
The point is usually conceded by unions or is not even addressed in the awards. The
cases deal mainly with the extent of confidential medical information that is appropriate
for the employer . to require as a condition for the payment of certain benefits. The
leading authority on this issue is Arbitrator Surdykowski and in the Providence Care
decision, supra, at p. 10, he quotes his oft cited decision from Hamilton Health Sciences
(2007) 167 L.A. C. (4th) 122:
Most modern collective agreements contain sick leave benefit provisions.
A fundamental principle that underlies every collective agreement is that
bargaining unit employees are under an obligation to regularly attend work as
scheduled in accordance with the collective agreement, and to provide notice
of and a legitimate excuse for absences from work. Employees are entitled to
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be paid for work performed in accordance with the collective agreement. In the
absence of collective agreement provisions employees are not entitled to be
paid if they do not attend work. Employer paid leave benefits, including STD
benefits, are all contractual. Paid leaves of absence, whether the absence is
due to illness or injury, or otherwise are only available to the extent that the
collective agreement so provides, and then only on the negotiated terms that
the agreement stipulates.
24. The onus is on the employee to establish entitlement to collective
agreement paid sick leave benefits. This generally means that the onus is on
the employee to establish that an absence is legitimate in the sense that she is
genuinely unable to report for work due to illness or injury. As a general
matter, the employer is entitled to sufficient "proof' of the employee's assertion
that she is unable to attend work due to illness or injury and entitled to
benefits. Also as a general matter, even if there are no paid benefits available,
or the employee elects to forgo them, the employer is entitled to notice of the
fact and expected duration of an absence for the legitimate business purposes
of work force management and absenteeism control purposes. Both the
employee and the employer have a legitimate interest in and an obligation to
facilitate as early a return to work as possible, with accommodation as
appropriate where reasonably available. The employer also has a legitimate
interest in investigating suspicious absences and information provided by an
employee in that respect. Of course all of this begs the question: what is
sufficient "proof' in that respect? What information is the employer entitled to
and what information must the employee provide?
25. As a matter of general principle in that latter respect, what is required
is sufficient reliable information to satisfy a reasonable objective employer that
the employee was in fact absent from work due to illness or injury, and to any
benefits claimed (see, Arbitrator Swan's comments in Re St Jean De Brebeuf
Hospital and C. U.P.E, Loc. 1101, (1977) 16 L.A.C. (2d) 199 at pp. 204-206).
As a general matter, the least intrusive non-punitive interpretive approach that
balances the legitimate business interests of the employer and the Privacy
interests of the employee is appropriate. But what the employer is entitled to,
and concomitantly what the employee is required to provide, will first and
foremost depend on what the collective agreement or legislation provide in that
respect. [Emphasis as per quote]
This passage sets out the nature and extent of information that an employer is entitled
to request and under what circumstances, absent specific contractual provisions that
would override these general principles.
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The case that comes the closet to the one at hand is sanofi pasteur, supra. It dealt with
a union's complaint about the employer requiring the employees to release their medical
information to a third party for the processing of short term sick leave benefits that were
"self insured" by the employer. Relying upon previous arbitral jurisprudence, it was
concluded, at p. 12:
.... the simple fact of engaging a third party with expertise and efficiencies to
assist with contract administration has been widely recognized as a valid
exercise of management rights.
I have not ignored the Union's assertion that the Employer needs explicit
contractual or statutory language to support such an arrangement. However, the
contrary is the case. The Employer has the management right and responsibility
to administer the Collective Agreement, including the short-term benefits
provision. Article 3.01 gives management "the exclusive function" of managing
and "maintaining order and efficiency". Nothing in the contractual language limits
that right. Since it has also been recognized that this Employer has the right to
expect employees to establish their entitlement to Short Term Sick Leave, it
follows that the Employer has the right to expect employees to sign authorization
for the release of their medical information to the entity that the Employer has
chosen to assist with the administration of that benefit. Since it is accepted that
appropriate information is being requested for the administration of the Collective
Agreement and since there is no evidence or suggestion that there is any
demonstrable reason to be concerned about bargaining unit members' privacy or
confidentiality, it must be concluded that the Union has failed to establish any
contractual or statutory violations.
An employer's use of third party administrators or assessors to assist in the
administration of self-funded short term illnesses is considered "well established,"
provided there is no contractual prohibition against this, see Canadian Bank Note,
supra, at para. 22. This arrangement is commonly referred to as 'Administrative
Services Only,' so ACCLAIM would be called an ASO provider in the case at hand.
Arbitrators has held that an ASO is deemed to have been delegated the function of
gathering and assessing information and then "standing in the shoes" of the employer,
with no greater rights and no greater need of information than if the employer were
performing the function itself. Those rights have been spelled out as follows:
26. In the absence of a collective agreement provision which specifies
otherwise an employee who does not attend work as scheduled is not entitled to
wages, or to sick leave or other benefits. Sick leave benefits are available only to
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the extent that a collective agreement so provides, and an employee who seeks
such benefits is obliged to produce the objectively satisfactory proof of
entitlement as required by the collective agreement or otherwise reasonably
necessary and not prohibited by statute or the collective agreement. An
employee who fails to provide required or reasonably necessary justification for
any otherwise unauthorized absence may be subject to discipline in that respect,
or may be denied sick leave or other benefits. Indeed, the employer may not be
obliged to continue to employ an employee who repeatedly fails to attend work
as scheduled without reasonable justification, or who has reasonable justification
(i.e. innocent absenteeism) but is unlikely to be able to attend work with
reasonable regularity in the foreseeable future even with accommodation.
27. Except to the extent fettered by legislation or the collective agreement, an
employer has the management right to implement workplace management
policies, including policies concerning attendance and absenteeism
management. An employer has the management right to question suspicious
absences or information provided by an employee to justify an unauthorized
absence. So long as it does not constitute harassment, it is not unlawful for an
employer to ask an employee for personal medical information in accordance
with legislation and the collective agreement for legitimate workplace
management and absenteeism control purposes. The employer can require an
employee who has been or is absent from work to provide proof that the
employee was or is legitimately unable to attend work due to illness or injury
sufficient to justify the absence or entitlement to sick leave benefits. In the case
of an ongoing absence, the employer is also entitled to an indication of when the
employee is likely to be able to return to work safely, and in appropriate
circumstances to any restrictions or accommodation that may be required in that
respect.
28. However, in this jurisdiction personal medical information is considered to
be highly confidential. The confidentiality of the doctor/patient relationship and
personal medical information is universally and legislatively recognized as one of
the most significant and assiduously protected privacy rights in our society. But
the employee privacy right which attaches to confidential medical information is
not absolute. The fact that medical is prima facie private and confidential does
not mean that it never has to be disclosed.
29. Whether or not and the extent to which such information must be
disclosed depends on the circumstances (including the legislated or collective
agreement requirements or prohibitions) and the legitimate purpose(s) for which
the information is reasonably required. The sensitivity of confidential medical
information is such that a conservative approach to required disclosure is
appropriate. The least intrusive non-punitive approach which balances the
employer's legitimate business interests and the employee's privacy interests is
required. Regardless of the bona fides of the employer's concerns or desire to
assist the employee, in the absence if permissive statutory or collective
agreement provisions the employer is entitled to no more than the reasonably
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necessary information to establish that the employee was or is unable to work
because he was or is ill or injured. Legislation and the provisions of the collective
agreement in that respect will both be strictly construed in that respect.
30. There are strict limits to the extent to which an employer can require an
employee to produce confidential medical information. The employer can only
require such information to be produced to the extent specifically permitted or
required by legislation or the collective agreement, or reasonably necessary for a
legitimate purpose in the circumstances. So long as the collective agreement
does not conflict with the applicable legislation, the nature and extent of the
confidential medical information that a bargaining unit employee can be required
to produce is determined by the requirements, permissions, or restrictions found
there. To the extent that the collective agreement is silent, the test is reasonable
necessity, as informed by legislation and the provisions of the particular collective
agreement. (See Canadian Bank Note, supra.)
What sets the case at hand apart from all the cases cited by the parties above may be
that the parties to this Collective Agreement have specifically acknowledged the roles of
Third Parties in the administration of other health benefits, but do not do so for the Short
Term Sick Leave Plan. Does this different contractual context and treatment have
significant implications upon the Employer's rights to engage a Third Party on an
Administrative Service Only (ASO) basis for the Short Term Sick Leave? The answer to
this must be 'no.'
This contract does not prohibit contracting out. It does not prohibit the use of a Third
Party Assessor or ASO. It specifically acknowledges that Third Party Insurers, such as
Green Shield and/or the Co-operators, will be administering their own policies in
accordance with their respective plans. Those provisions are necessary in this
Collective Agreement to protect the rights of the employees vis -a -vis the Third Parties.
However, the case at hand is a different kind of benefit. The Short Term Sick Leave
Plan is self-funded by the Employer. The employees' rights derive directly from the
Collective Agreement and are enforceable against this Employer. The Employer has
the right and the obligation to administer the Short Term Sick Plan. This is a function of
its management rights and responsibilities. Nothing in the Collective Agreement
restricts its right to delegate that responsibility by engaging the services that may lead to
better efficiency. Indeed those rights are explicitly set out in Article 2.01 wherein it also
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acknowledges that those rights can only be "abridged" by specific or express language.
The simple lack of mention of an ASO in Article 18.05 cannot be said to be an explicit
limitation on management's right to engage such services. It is true that the Collective
Agreement could have specifically provided reference to an ASO or required employees
to fill out specific or mandated forms, see OLG Point Edward, supra, and Northwest
GTA Hospital Corporation (Pee/ Memorial Site), supra. However, even this latter case
concludes, at para. 23 - 24:
The union argued that the employees are entitled by right to short-term benefits
and for this reason, the requirement to initiate a claim by form is unreasonable. I
do not agree. Certainly, employees are to be paid benefits if they meet the terms
of eligibility as set out in the collective agreement ... Where the collective
agreement is silent on the process by which benefits may be claimed, and the
employer has the discretion to determine the form of this process, the employer's
choice of process will only be constrained where it precludes otherwise legitimate
employee claims.
... I cannot conclude that the requirement to initiate a claim for benefits by way
of written form precludes otherwise legitimate entitlements.
In the Corporation of the Town of Oakville, supra, the Union complained about the
employer asking for additional medical information from employees' doctors when
assessing fitness to return to modified duties because the requested information was
said to be beyond the "complete code" contained in the Collective Agreement for the
handling of medical reports. While that Collective Agreement was very detailed, it was
found to imply an "unqualified entitlement to obtain medical information from the absent
employee's physician or from a specialist, subject only to the employee's consent," (at
p.19). All these previous Awards point to a recognition of the right of employers to seek
assistance and formulate procedures for the processing of medical absence claims.
This case law must now be applied to the Collective Agreement under scrutiny in this
case. Article 18.05 does spell out that an employee needs to support his/her claim for
Short Term Sick benefits with a "certificate from a qualified medical practitioner." It also
spells out when that "certificate" may be required. The Employer is providing
employees with a Form that tells employees to either provide ACCLAIM with the
information contained in the Form issued under the logos of ACCLAIM and the
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Employer OR to provide a medical note with the same information. Either option
remains in place, even under the current system. The propriety of the extent of that
information that the Employer is requesting has yet to be resolved and is not at issue in
this aspect of the case. All that is in issue at this point is whether the Employer can
insist that information be submitted to ACCLAIM for processing. Since the arbitral case
law accepts that an employer can determine the nature of its claims process or
administration, and nothing in this Collective Agreement specifically restricts that right, it
must be concluded that the involvement of ACCLAIM in the processing of Short Term
claims cannot be said to be in violation of the Collective Agreement. Therefore, there is
no violation of the Collective Agreement by the Employer asking this bargaining unit to
submit the medical information to ACCLAIM, either by way of the prescribed form or the
medical certificate.
Having reached this conclusion, it must be emphasized that ACCLAIM remains
as the delegate of this Employer. ACCLAIM must abide by the provisions of Article
18.05 and only require medical certificates as spelled out therein. Further, the nature
and extent of information being sought must be consistent with the case law cited above
and it cannot be requested in a manner or to the extent that it amounts to harassment.
Issues remain about whether the information being sought is too invasive, and whether
the Employer is making untimely or too frequent requests for additional information.
However, I am confident that the parties should now be able to address the Forms
themselves and reach agreement regarding their contents as well as some procedures.
I note that they have already agreed to meet and discuss these issues. Any others
issues regarding specific claims will have to be dealt with on a case-by-case basis.
At the parties' request, I remain seized with jurisdiction over the Forms and Short
Term Sick Leave Plan administration, including the scope of this grievance.
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Accordingly, the case shall resume at the request of either party should any further
assistance be required.
DATED at TORONTO this 15th day of October, 2012.
Paula Knopf - Arbitrator