HomeMy WebLinkAboutUnion 18-05-18In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations
Act
Between:
HAMILTON HEALTH SCIENCES
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION
LOCAL 273
Sick Pay Benefits Grievance
OPSEU Grievance No. 2016-0273-0013, 2016-0273-0014
Arbitrator: Randi H. Abramsky
Appearances
For the Union: Mae J. Nam Counsel
For the Employer: Mark Mason Counsel
Hearing: October 19 2017, in Hamilton, with additional
submissions on April 20, 2018.
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AWARD
Background
1. OPSEU represents a group of employees working at Hamilton Health Sciences (the
“Hospital”), who receive coverage for sick pay benefits under the Hospital of Ontario
Disability Income Program (HOODIP). The HOODIP Disability Income P lan (1992)
states that proof of total disability (such as a doctor’s certificate) is required for absences
of three days or more. It also stipulates that employees must be under the active and
continuous care of a physician to be considered totally disabled.
2. Since the Spring of 2005, the Hospital’s Sick Pay Benefits policy required an
employee to provide medical documentation to prove total disability for absence of five
days or greater. To receive benefits, employees originally needed to have their p hysician
complete medical documentation as poof of total disability with in two business days of
the fifth day of absence. This was later changed to ten (10) calendar days following the
5th day of absence. The policy allowed for management discretion to recover payment of
benefits for employees who failed to provide medical documentation for their absence.
3. In July 2015, the Hospital instituted the current Medical Certificate of Disability
(MCD) form for the purposes of medical documentation for total disability, and receipt of
Short Term Disability benefits.
4. On August 10, 2015, the Hospital advised the Union that it was considering aligning
its sick pay benefits policy with the HOODIP guideline of requiring proof of total
disability after 3 days of consecutive absence. The Union responded with their concerns,
and the Hospital agreed to consider those concerns.
5. On May 31, 2016, the Hospital, through an internal memo, gave notice to the Union
and employees that effective August 1, 2016, the Hospital would be changing the criteria
for requesting medical documentation to support the payment of Short Term Disability
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benefits. There is a dispute between the parties as to whether this notice was given to all
employees or some employees. Nothing turns on that issue. The memo stated as follows:
A Medical Certificate of Disability (MCD) would be required for absences of
three (3) shifts or greater, instead of five (5) days. This applied to employees in
receipt of paid sick benefits.
* The MCD must be received by the Hospital within two (2) business days
following the third day of absence. Pay stoppage would be instituted for
absences that were unsupported.
6. On July 17, 2016, OPSEU filed two policy grievances regarding the Hospital’s
announced change in policy. Among other things, the Union alleged that the Hospital’s
intended course of action was unreasonable and in violation of Articles 15, 29(d), as well
as other provisions of the collective agreement. In addition, the Union alleged that the
Hospital was estopped from altering the long-standing practice of requiring a medical
certificate after five (5) consecutive days of absence.
7. The parties engaged in several discussions regarding the issues in dispute and the
parties respective concerns but were unable to resolve the outstanding issues.
8. The parties met at arbitration on October 19, 2017. Upon presenting their positions in
a condensed manner, the parties agreed that I would try to mediate a resolution. Despite
the best efforts of everyone involved, the parties were not able to reach an agreement to
resolve this matter.
9. However given the nature and depth of the discussion that I had with both parties
separately, and with counsel together, it was determined that a mediation/arbitration
process pursuant to the Labour Relations Act, with the powers conferred upon me under
that statute, would be best suited to resolving this matter, and that I would render a
baseline decision based on the information and submissions provided at the arbitration.
The parties have agreed to certain concepts, which I have included in my award below.
On other matters, the parties remained divided. Having heard and considered the
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submissions of the parties, and their respective concerns, and having reviewed HOODIP
and the collective agreement, I reach the conclusions set out below:
Decision
10. HOODIP requires that an employee supply proof of total disability (such as a
doctor’s certificate) that is satisfactory to the Employer to qualify for sick pay benefits.
11. The Medical Certificate of Disability (MCD) attached as “Schedule A” is required
for absences related to an illness of three (3) consecutively scheduled shifts or greater in
duration.
12. To be considered totally disabled under HOODIP, an employee must be under the
active and continuous care of a physician. It is expected that an employee will see a
physician within the three (3) consecutively scheduled shifts or, if their illness continues,
while the employee remains symptomatic An employee is required to submit the MCD
within four (4) business days of the 3rd day of absence or their physician appointment,
whichever is later, or the employee risks not being granted sick pay benefits for their
absence.
13. An employee who does not attend an appointment in accordance with the timeframes
as per paragraph 12 above, or whose doctor is not able/willing to provide the MCD
within four (4) business days, is required to advise Health Safety & Wellness (“HSW”) of
the delay. In such circumstances, there will be no pay stoppage of sick pay benefits;
however, the employee may be required to repay the sick pay benefits if it is determined
that the sick pay benefits have been improperly paid. The employee will also advise
HSW when the MCD is expected to be received by the Employer and will be diligent in
pursuing the MCD, failing which paragraph 16 below may apply.
14. If the employee is unable to be seen by a doctor within the three (3) missed shifts or
during the period of their continuing illness in excess of three (3) days (up to the
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maximum of five (5) days), the employee is required to advise HSW. A determination of
entitlement to sick pay benefits will be made on a case-by-case basis.
15. An employee who has an infectious or communicable disease and is advised by their
doctor not to attend for an appointment shall provide a note from the doctor’s office to
substantiate the same. For clarity, the MCD would not be required for this purpose.
16. If the Hospital is not satisfied that the employee was “totally disabled” or that the
employee has failed to satisfy the requirements set out above, the Hospital may stop
payment of sick pay benefits and/or seek repayment of any sick pay benefits already
provided. It is understood that repayment must be authorized by the employee. If the
Employer is seeking repayment of sick pay benefits already provided, the Employer and
the employee will discuss a schedule for repayment.
17. Any dispute concerning an employee’s entitlement under HOODIP may be subject to
a grievance and arbitration.
Issued this 18th day of May, 2018.
Randi H. Abramsky
______________________________
Randi H. Abramsky, Arbitrator