HomeMy WebLinkAbout2019-0197.Policy.21-07-23 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2019-0197
UNION# G-21-19-COR
Appendices attached
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Policy) Union
- and -
The Crown in Right of Ontario
(Metrolinx-Go Transit) Employer
BEFORE
Tatiana Wacyk
Arbitrator
FOR THE UNION
Dean Ardron
Ursel Phillips Fellows Hopkinson LLP
Counsel
FOR THE EMPLOYER Daniel Fogel (Counsel)
Samantha Sutherland (Student-at-Law)
Hicks Morley Hamilton Stewart Storie LLP
HEARING
May 27 & June 3, 2021
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Decision
[1] The parties filed the following Agreed Statement of Facts, setting out the context
and issues in this matter. As there was no need to attach most of the documents
referred to, I have removed the accompanying exhibit number in the Agreed
Statement of Facts.
AGREED STATEMENT OF FACTS
THE PARTIES
1. Metrolinx – GO Transit (the “Employer”) is a regional transportation agency operating
GO Transit, the UP Express and PRESTO. GO Transit is the regional public transit
service for the Greater Toronto and Hamilton Area, operating numerous train lines and
bus routes that carry 70 million riders annually.
2. The Amalgamated Transit Union, Local 1587 (the “Union”) is the certified bargaining
agent for employees in the bargaining unit described at Article 2.1 of the parties’
Collective Agreement.
3. The Employer employs approximately 4860 individuals. The ATU bargaining unit
contains approximately 2150 employees. There is also a bargaining unit represented by
Local 235 of the International Association of Machinists & Aerospace Workers, which
contains approximately 80 Metrolinx – GO Transit employees.
4. The Employer and the Union are parties to a Collective Agreement with a term of
June 2, 2018 to June 1, 2022.
5. The Parties agree to the facts set out herein for the purposes of litigating the instant
grievances in an efficient manner. The agreed upon facts are without prejudice to any
other grievance or proceeding and shall not be referred to in any other matter.
THE HISTORY OF THESE PROCEEDINGS
6. In August 2015, the Employer contracted with Wellpoint Health Ltd. (“Wellpoint”) as a
third-party service provider to assist it with the administration and adjudication of
requests for short-term sick leave/pay and in determining the nature and extent of
workplace accommodations to be provided for employees who are ill or otherwise
disabled.
7. In August 2016, the Union filed a policy grievance (#086-16-COR) in relation to
employees being required to provide medical information to Wellpoint when claiming sick
leave/pay or for purposes of accommodation. On July 31, 2018, the Employer’s contract
with Wellpoint expired.
8. Following discussions between the parties, this grievance was ultimately withdrawn.
The Union then pursued individual grievances concerning these issues, including
several of the grievances that are being heard in this proceeding.
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9. Effective November 2018, Oncidium Inc. (“Oncidium”) began providing services as a
third-party service provider to assist the Employer with the administration and
adjudication of requests for short-term sick leave/pay and in determining the nature and
extent of workplace accommodations to be provided for employees who are ill or
otherwise disabled.
10. The Employer’s short-term disability benefit is self-insured.
THE GRIEVANCES AND AGREED MANNER OF PROCEEDING
11. The parties have agreed to have the following grievances heard together in this
proceeding:
Grievance No. Grievor Exhibit
G-021-19-COR Policy Grievance B
G-072-16-BOE Debra Tucker C
G-08-18-BOW David Bowers D
G-071-18-TS Colleen Terry E
G-092-18-TS Francine Leroux F
G-080-19-BFF Stephan Levasseur G
G-137-19-BOE Derek Walters H
G-157-19-BOW Alan Brock I
G-041-20-BOE Kathleen Creary J
G-056-20-BON Abdullazize Ingar K
12. In the interests of efficiency and good labour relations, the parties have further
agreed to bifurcate the proceedings in order to have certain issues addressed at the
outset, and to reserve other issues to a later stage. The Employer agrees to do so
without prejudice to any preliminary objections it has raised or may raise in respect of
any of the aforementioned grievances. The Employer reserves its right to put forward
preliminary objections to the aforementioned grievances at the appropriate juncture(s) in
the proceeding.
13. At this time, the parties have agreed to seek a determination of the following issues
which are the subject of Grievance #G-021-19-COR and also form part of some of the
individual grievances listed above:
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(a) Is it a breach of the Collective Agreement, the Human Rights Code, the Occupational
Health and Safety Act, the Personal Health Information Protection Act (if applicable), or
any other statute if the Employer:
(i) Requires employees to provide Oncidium with a completed copy of the current
Attending Physician Statement – STD/Sick Leave in order to request and be
provided with sick leave and/or sick pay for absences of more than 5 consecutive
work days?
(ii) Requires employees to provide Oncidium with a completed copy of the
current Attending Physician Statement – Accommodation in order to request and
be provided with accommodations for disability?
(iii) Requires the employees to pay “any charges for the completion of” the
above-noted forms?
14. The disputes set out in paragraph 13 are the entirety of the Union’s disputes with
respect to Grievance #G-021-19-COR and the Employer’s disability management
process at present. This Agreed Statement of Facts is for the purpose of the parties’
arguments in respect of those matters.
15. The parties have agreed that any remaining disputes in respect of the other
grievances listed in the chart above will be reserved for a future stage of the
proceedings, including:
(a) Any preliminary objections raised or to be raised by Metrolinx to the arbitration of the
grievances;
(b) Any remaining issues related to the individual circumstances of the grievors; And
(c) Any remedial issues related to the grievances.
SHORT TERM SICK LEAVE/PAY
16. The current practice is that Oncidium provides the following to employees who have
been or are expected to be absent due to illness or injury in excess of 5 consecutive
work days:
(a) A standard form letter;
(b) Short Term Disability (STD)/Sick Leave Process for Metrolinx Employees;
(c) Attending Physician Statement – STD/Sick Leave; and
(d) Morneau Shepell Employee and Family Assistance Program brochure.
17. Both the Attending Physician Statement – STD/Sick Leave and the Attending
Physician Statement – Accommodation state the following:
“Please note that any charges for the completion of this form are the employee’s
responsibility”. Prior iterations of the forms used for these purposes did not stipulate that
employees were required to pay if charged for their completion.
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18. Metrolinx is not aware of any past practice of Metrolinx paying the costs associated
with medical forms or certificates other than certificates of the type described in Article
B6.06(i) of the Collective Agreement when requested in the circumstances described in
that article. The Union has no evidence of any past practice in relation to payment by
Metrolinx for medical forms or certificates.
19. Employees who have been absent due to non-occupational illness or injury for more
than 5 consecutive work days and have not provided the information requested in the
Attending Physician Statement – STD/Sick Leave may receive one or more telephone
calls directly from staff at Oncidium identifying themselves only by their first name and
last initial. Oncidium staff contacting employees may remind them of the need to provide
the information requested in the Attending Physician Statement – STD/Sick Leave to
ensure the timely disposition of their case. Employees who continue not to provide that
information may also receive one or more letters from Oncidium and/or Metrolinx
concerning the need to provide the completed form. Some employees who have not
provided a completed form or who have declined or refused to provide the information
requested in it after repeated requests and warnings have had their STD benefits
suspended. Some employees who have not contacted Metrolinx or Oncidium at all
concerning their absences and despite repeated requests for contact have been advised
by Metrolinx that, absent a reasonable and acceptable explanation for the absence by a
particular date, Metrolinx will assume that it is not the employee’s intention to return to
work and as a result, Metrolinx may consider the employment relationship to be
terminated.
WORKPLACE ACCOMMODATION REQUESTS
20. The current practice is that Oncidium provides the following to employees who have
not made claims for sick leave/pay and wish to request workplace accommodation due
to disability:
(a) A standard form letter;
(b) Workplace Accommodation Request (ACM) Process for Metrolinx Employees;
(c) Attending Physician Statement - Accommodation; and
(d) Morneau Shepell Employee and Family Assistance Program brochure.
APPLICABLE PROVISIONS OF THE COLLECTIVE AGREEMENT:
[2] The applicable provision are:
B6.06 Medical Certificates
(i) When a Supervisor requires verification, the Supervisor may request an employee to
provide a medical certificate from a qualified Ontario medical practitioner for absences of
five (5) days or less. Such requests will not be made in a discriminatory manner, and
provided that such medical certificate satisfies the criteria set out in Article B6.06, $10.00
will be paid by the employer. There will be no payment for a medical certificate that does
not meet the requirements outlined in this article (iii), nor will there be duplication of
payment for the same period of illness.
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(ii) The Supervisor must make this request during the absence and prior to the
employee’s return. If the employee does not abide by this request to produce the
medical certificate, then the employee will not receive sick pay benefits for the absence,
but will be allowed to return to work providing there are no further extenuating
circumstances.
(iii) The medical certification must, as outlined below, state the following information:
(a) date the employee was first seen by physician and confirmation that the
employee is under doctor’s care;
(b) prognosis of return to work date and confirmation that the employee cannot
work;
(c) for return to work, that the employee is now medically fit to resume his/her full
duties.
Under the requirements of this Article, GO Transit will not accept certificates that:
(a) are photocopies;
(b) do not indicate first treatment date or expected return to work date;
(c) are not verified by a legally qualified and licensed medical practitioner of
Ontario.
(iv) If the employee was treated by a medical practitioner outside the Province,
verification of such medical certificate of sickness or accident must be obtained from a
legally licensed Ontario medical practitioner.
(v) When an employee is absent for a period of more than five (5) consecutive work
days, he/she shall provide his/her Supervisor with a satisfactory medical certificate.
Failing this requirement, he/she will not receive sick pay benefits and will not be allowed
to return to work. This protects both the individual from harm and GO Transit from any
liability due to further complications of the sickness or injury.
(vi) Part-time employees are not eligible for sick pay benefits, irrespective, this medical
certificate criteria still applies. This procedure does not prevent the Employer from taking
progressive action to correct such situations as may be necessary.
The employer may require that the employee submit to a medical examination at the
expense of the employer, where for reasons of health, an employee is frequently absent
or unable to perform his duties.
Payment of benefit is subject to the employee reporting such sickness and following all
the correct procedures. Failure to do so, may jeopardize such payments.
8.8(1) Medical Placements
Where it is established through a medical practitioner that an employee has a
permanent partial medical disability through non occupational or occupational injury or
illness which prevents him from returning to his original classification, he shall return to
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another position opening for which he is medically able and qualified or will be within
sixty (60) working days without the position being posted and prior to standing
applications.
…
8.8(2) (i) When it is established through a medical practitioner that an employee is
temporarily unable to continue to fulfil all of the requirements of his own classification
due to medical reasons (non-occupational illness or injury), he may be allowed to return
to work in his classification with modified duties and responsibilities, as agreed by the
parties and as indicated by a medical practitioner when the employee is collecting sick
benefits.
…
(ii) When it is established through a medical practitioner that an employee is
temporarily unable to continue to fulfil the requirements of his current classification due
to medical reasons, (non occupational illness or injury) he may be placed in another
classification as agreed by the parties and as indicated by a medical practitioner when
the employee is collecting sick benefits.
[Emphasis added]
…
LEGISLATIVE REFERENCES:
[3] The Union also relied on the following legislative provisions:
Personal Health Information Protection Act, 2004, S.O. 2004, c. 3 SCHED. A
(“PHIPA”)
Health information custodian
Restrictions on recipients
49 (1) Except as permitted or required by law and subject to the exceptions and
additional requirements, if any, that are prescribed, a person who is not a health
information custodian and to whom a health information custodian discloses personal
health information, shall not use or disclose the information for any purpose other than,
(a) the purpose for which the custodian was authorized to disclose the information
under this Act; or
(b) the purpose of carrying out a statutory or legal duty. 2004, c. 3, Sched. A, s. 49
(1).
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Extent of use or disclosure
(2) Subject to the exceptions and additional requirements, if any, that are prescribed, a
person who is not a health information custodian, and to whom a health information
custodian discloses personal health information, shall not use or disclose more of the
information than is reasonably necessary to meet the purpose of the use or disclosure,
as the case may be, unless the use or disclosure is required by law. 2004, c. 3, Sched.
A, s. 49 (2).
…
Occupational Health and Safety Act, R.S.O. 1990, CHAPTER O.1
Employer access to health records
63. (2) No employer shall seek to gain access, except by an order of the court or other
tribunal or in order to comply with another statute, to a health record concerning a
worker without the worker’s written consent. R.S.O. 1990, c. O.1, s. 63 (2).
AUTHORITIES:
[4] The Union relied on the following authorities:
Hamilton Health Sciences and Ontario Nurses’ Association, 169 L.A.C. (4th)
293, 92 C.L.A.S. 348 (Surdykowski); Canadian Bank Note Co. and IUOE,
Local 772, Re. 222 L.A.C. (4th) 293, 2012 CarswellIOnt 10489; Greyhound
Canada Transportation Corp. v. Amalgamated Transit Union, Local 1415
(Medical Chart Notes Grievance), [2011] O.L.A.A. No. 655; Faculty Assn. of
Red Deer College v. Red Deer College (Legault Grievance), [2015] A.G.A.A.
No. 1; Central Care Corp. v. Christian Labour Ass. of Canada, Local 302
(Courtney Grievance), [2011] O.LA.A. No. 144; Victoria Union Hospital and
S.U.N., Re, 1993 CarswellSask, 677, 31 C.L.A.S. 33; International Union of
Operating Engineers, Local 987 v. Health Sciences Centre, 114 L.A.C. (4th)
400, 2003 CarswellMan 365; Greater Sudbury (City) v. C.U.P.E., Local 148,
197 L.A.C. (4th) 123, 2010 CarswellOnt 11480; Ontario Public Service
Employees Union v Ontario (Treasury Board Secretariat) (Union Grievance),
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[2017] OGSBA No 94; Ontario Nurses' Association v St Joseph's Health
Centre [Indexed as: Ontario Nurses' Assn v St Joseph's Health Centre], 76 OR
(3d) 22; Ontario (Greater Toronto Transit Authority – GO Transit) and ATU,
Local 1587, 2008 CarswellOnt 10252; Thunder Bay (City) and ATU, Local 966,
Re, 1992 CarswellOnt 562, and Hamilton Health Sciences Corp. v. O.N.A.,
2008 CarswellOnt 6328 (Devlin).
[5] The Employer relied on the following authorities:
Brown & Beatty - 4:2120 — Presumption that all words have meaning,
Canadian Labour Arbitration, 5th Edition; Brown & Beatty – Canadian Labour
Arbitration, 5th Edition, 4:2150 — The context of the agreement; GO Transit
and ATU 1587, 2008 CanLII 19767 (ON GSB); OPSEU (Hernden Larkin) v
Ministry of Community Safety and Correctional Services - 2014 CanLII 40176
(ON GSB); OPSEU v Ministry of the Solicitor General (Ye Grievance) - 2019
CanLII 97292 (ON GSB); Waste Management Canada Inc. v Teamsters Local
Union No. 419, 2014 CanLII 24456; AMAPCEO and Ontario (Ministry of Health
and Long-Term Care)(Connell), 2018 CarswellOnt 21831; Canadian Bank
Note Co. and IUOE, Local 772, 2012 CarswellOnt 10489; Goad v 1681078
Ontario, 2010 HRTO 817 (CanLII) 9; ADGA Group Consultants v Lane, 2008
CanLII 39605 (ON SCDC), 2017 CarswellOnt 15495; sanofi pasteur, 2010
CanLII 78521 (ON LA); Inergi LP and Society of United Professionals (2019-
0258), 2020 CarswellOnt 14912; Central Care Corp. v CLAC, 2011
CarswellOnt 1682 15; Sunnybrook Health Sciences Centre and SEIU Local 1
(SB14-06 SER), 2016 CarswellOnt 11374; Toronto (Metropolitan)
Commissioners of Police v Police Association (Metropolitan Toronto);1981
CarswellOnt 1344; OPSEU v Ontario (Ministry of Finance), 2004 CarswellOnt
3674; OPSEU v Ontario (Ministry of Labour), 2008 CarswellOnt 9019 19;
Ontario (Ministry of Transportation) and OPSEU (Brydges) – 2014
CarswellOnt 16144; Complex Services Inc. v OPSEU Local 278, 217 L.A.C.
(4th) 1 21; G & K Services Canada Inc. and UFCW Local 206 (Individual
Grievances) - 2013 CarswellOnt 8450; Brown & Beatty, Canadian Labour
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Arbitration, 5th Edition 5:1310 Clear language required to prohibit “contracting
out”; Atlantic Packaging Products Ltd. and CEP, Local 333 – 2006
CarswellOnt 10784; Revera Long Term Care Inc. v ONA, 2011 CarswellOnt
13585; Revera Long Term Care Inc v CUPE, October 8, 2014; and, Columbia
Forrest Products and USW Local 1, 2010 (Weekly Indemnity Forms), 2017
CarswellOnt 15495.
GENERAL OVERVIEW OF THE JURISPRUDENCE:
[6] This dispute, as many preceding it, arises from the tension between the
significant privacy rights associated with employee’s personal medical
information, and an employer’s entitlement to sufficient information so as to be
able to manage its workplace, administer it sick benefits program, and meet its
statutory and collective agreement obligations.
[7] There was no dispute that the level and detail of medical information an employer
is entitled to varies with the circumstances. As stated by Arbitrator Stout at
paragraph 49 of his recent decision in Inergi LP, supra:
49. The cases also recognize that context is extremely important to the
analysis and the balancing of interests. In other words the purpose of the
requirement to provide medical information and who will have access to that
information are important considerations. Generally, very little medical
information will be required to certify a safe return to work. However,
more detailed medical information may be required to accommodate a
returning employee with modified duties. It is also well accepted that
there is a continuum along which an employee's obligation to provide
more detailed medical information will increase with the length of
absence and/or complexity of any accommodation required upon
return to work, see Brant Community Healthcare System v. O.N.A., 2008
CarswellOnt 10318 (Ont. Arb.). [Emphasis added]
[8] Determining where a situation falls in that context involves a careful analysis of
the competing rights and obligations of the parties, in the particular context giving
rise to the need to share information. The nature and extent of medical
information to which an employer will be entitled will vary on the basis of factors
which include: the context of the absence; the length of absence; the medical
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information already provided; whether the employee is seeking STD or
accommodation to return to work; the nature of the work performed by the
employee; and, whether there exists any reasonable basis to question the
veracity or adequacy of the medical information which has already been
provided.
[9] These issues have been much examined and opined upon in numerous contexts,
as evidenced by the decisions relied on by the parties. The result is a
comprehensive and detailed compendium of guiding principles – the genesis of
which was the Decision of Arbitrator Surdykowski in Hamilton Health Sciences,
supra.
[10] The Employer did not dispute that Arbitrator Surdykowkski’s decision in Hamilton
Health Sciences, supra was a seminal decision. However, it submitted this is a
very nuanced area and that in the 14 years since that decision, issues and
concepts have evolved and realities played out in different ways that require
revisiting some principles at play, depending on the collective agreement
language and circumstances.
[11] It is true that subsequent jurisprudence has, in some instances, expanded upon
the principles set out by Arbitrator Surdykowski in his Hamilton Health Sciences
decision. Further, as pointed out by Employer Counsel, Arbitrator Surdykowski
conceded, in Canadian Bank Note Co. supra, that he has been persuaded an
employee’s consent may not be required with regard to every contact with an
employee’s physician, as he initially suggested in Hamilton Health Sciences.
Similarly, in Revera Long Term Care Inc., v. ONA, supra, Arbitrator Surdykowski
overcame the misgivings he expressed in Hamilton Health Sciences, with regard
to a combined STD benefits/return to work/ accommodation form.
[12] However, for the balance of the issues I must address in this instance, I find the
decision in Hamilton Health Sciences remains good law.
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[13] Indeed, in his recent decision in Inergi LP, supra, Arbitrator Stout quotes with
approval, a recent award of Arbitrator Goodfellow, in Toronto Hydro-Electric
System Ltd. and Society of United Professionals (Attending Physician
Statement), Re, 2019 CarswellOnt 12143 (Ont. Arb.), in which he, in turn,
describes the decision in Hamilton Health Sciences, as standing out from the
myriad of well written arbitral decisions, and “the first and most comprehensive
treatment in this province of the issues concerning employer requests for
employee medical information in the “first instance”.
[14] Accordingly, it is useful to start out at the beginning, with the following from
Hamilton Health Sciences, supra:
21. There is nothing in the mere existence of an employment relationship
that gives the employer any inherent right to compel its employees to
compromise their legitimate right to keep personal medical information
confidential. An employer only has a right to an employee's confidential
medical information to the extent that legislation or a collective agreement
or other contract of employment specifically so provides, or that is
demonstrably required and permitted by law for the particular purpose. …
22. The law that applies to privacy issues includes the "law" that the parties
to a collective agreement … create for themselves. …
…
24. …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. …
25. …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.
26. …Accordingly, the Union is entitled to negotiate both collective
agreement benefits entitlements and the preconditions to such
entitlements, including the information that must be provided in order to
obtain a particular benefit. That is, as the exclusive bargaining agent the
Union can effectively consent to the release of the confidential personal
medical information that is required in order to establish entitlement to an
STD benefit payment on behalf of bargaining unit employees. …
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27. …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 specified 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.
28. As a general matter there is nothing to prevent an employer from
contracting out the information gathering or assessment of medical
information function, as the Hospital has done in this case. But the party to
whom the employer has contracted out this function stands in the shoes of
the employer and has no greater right to or need for information than the
employer has if it performs the function itself. …
29. …There is a broad and consistent arbitral and judicial consensus that
in the absence of contractual provision binding on the employee an
employer has no right to a diagnosis. …
…
33. …An employer cannot require an employee to consent to a release of
more confidential medical information than is permitted or required by
statute or the collective agreement, and that is demonstrably necessary for
the particular purpose.
34. Further, the intensely personal nature of confidential medical
information, the individual, societal and institutional interests in preserving
the confidentiality of such information, and the protections that have been
legislated to protect its privacy and use, suggest a conservative approach.
Accordingly, collective agreement provisions that speak to the information
than an employee must provide to the employer in order to satisfy the
employee's obligation to justify an absence or to obtain STD benefits in that
respect should be strictly construed.
35. …A "basket" consent that purports to authorize anyone who the
employer may ask to release confidential medical information is not
appropriate. Nor is it appropriate to require an employee to sign a forward-
looking consent that may exclude her from the confidential medical
information loop. The overwhelming weight of the arbitral jurisprudence
takes a dim view of consents that purport to give an employer prospective
permission, particularly where the consent purports to permit the employer
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to unilaterally (with or without notice to the employee) initiate direct contact
with a doctor or other custodian of confidential medical information. …
36. In the absence of collective agreement authorization a "one size fits
all" medical certificate of disability form for STD benefits purposes will
necessarily be limited in scope in the first instance. Such a consent should
identify the medical professional or custodian of medical information,
specify the period it relates to, and although it can ask, the employer cannot
require an employee to consent to a release of the employee's general
medical history, a primary or secondary diagnosis, a treatment plan (as
distinct from the fact that there is one and that it is being followed), or any
medical prognosis other than an expected return to work date.
…
43. …The fact that additional information may subsequently be required
does not mean that the employer is entitled to it in the first instance.
[15] The decision in Hamilton Health Sciences has been endorsed, and expanded
upon in many subsequent decisions, including those referred to by both parties,
in this matter.
[16] As indicated above, the arbitral jurisprudence recognizes that different rights and
obligations arise regarding the disclosure of medical information depending on
where the parties find themselves on the continuum of addressing a medical
absence.
[17] While the arbitral decisions relied on by the parties dealt with myriad specific
facts which are of no application in this instance, they did articulate the following
general principles which appear to remain in dispute in this instance, and most, if
not all of which, had their genesis in Hamilton Health Sciences, supra:
– Confidentiality of the physician/patient relationship, and related medical
information are universally and legislatively recognized as attracting significant
privacy rights in modern Canadian society; (see: Ontario Nurses' Association v.
St Joseph's Health Care, supra where the Court at paragraph 18 wrote, in part,
that: "The doctor-patient relationship is among the most private in Canadian
society.");
– In determining the breadth of medical information to which an employer is
entitled, the provisions of the collective agreement are paramount, and given the
confidential nature of such information, such provisions ought to be strictly
construed; (Grey Hound, supra; Canada Bank Notes, supra) etc.;
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– When an employer unilaterally introduces a rule, it must not be inconsistent with
the collective agreement (Lumber & Sawmill Workers' Union, Local 2537 v. KVP
Co.(1965), 16 L.A.C. 73 (Ont. Arb.) ("KVP") referred to in I.U.O.E., Local 987 v.
Health Sciences Centre, supra, at paragraphs 26 and 47.);
– The intensely personal nature of confidential medical information, as well as the
individual, societal and institutional interests in preserving the confidentiality of
such information mandates that in the absence of collective agreement
authorization, a universal or "one size fits all" any medical certificate of disability
form for STD benefits purposes ought to be limited in scope in the first instance.
(Columbia Forrest Products, supra);
– In the absence of collective agreement provisions or legislation that provides
otherwise, in the first instance, an employer is only entitled to know that an
employee is unable to work because of illness or injured; the expected return to
work date; and, what work the employee can do. (Greater Sudbury (City) v.
C.U.P.E., Local 148, supra, paragraphs 14 & 15);
– While employers are not required to accept all medical information provided at
face value, nor are they automatically entitled to a second opinion simply in order
to challenge the employee’s eligibility. (Greyhound Canada Transportation Corp.,
supra; Faculty Assn. of Red Deer College, supra; Inergi LP, supra);
– In instances where an employer requires additional information e.g. there is
reasonable cause to suspect the genuineness, accuracy or quality of the
information provided, additional information may be required. The governing
principle is that the employer is entitled only to what is objectively reasonably
necessary, collected and shared in the least intrusive manner. (Central Corp.
supra and I.U.D.E., Local 987 v. Health Sciences Centre, supra, and Greater
Sudbury (City) v. C.U.P.E., Local 148, supra; and Hamilton Health Sciences,
supra, (Devlin);
– While an employer may be able to contract out the review of medical information
to a third party, that third party stands in the shoes of the employer and has no
greater right to medical information than does the employer (Columbia Forrest
Products, supra);
– Given the confidentiality of personal medical information, care must be taken to
ensure that an employee is aware of the information that will be considered in
adjudicating his or her claim, and consents to the use of that
information.(Hamilton Health Sciences, supra (Devlin)). Nor can an employee
be required to sign a forward-looking consent that excludes the employee from
the confidential medical information loop. (Canada Bank Notes, supra,
paragraph 39).
– While there is a wider sphere of entitlement to personal medical information
when accommodation is sought, there are still restrictions, and the employer is
only entitled to that information which is reasonably necessary. (Central Corp.
supra,).
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[18] I will apply and, as necessary, expand on the above principles as they apply in
this instance.
ISSUE #1 – ATTENDING PHYSICIAN STATEMENT - STD/SICK LEAVE OF MORE
THAN 5 CONSECUTIVE WORK DAYS:
[19] The first issue to be determined is defined by the parties as follows:
Is it a breach of the Collective Agreement, the Human Rights
Code, the Occupational Health and Safety Act, the Personal
Health Information Protection Act (if applicable), or any other
statute if the Employer requires employees to provide Oncidium
with a completed copy of the current Attending Physician
Statement – STD/Sick Leave in order to request and be provided
with sick leave and/or sick pay for absences of more than 5
consecutive work days?
Attending Physician Statement – STD/Sick Leave
[20] The Attending Physician Statement at issue is attached as Appendix A.
Essentially it is comprised of an employee Consent/Authorization (“Consent”); a
second page posing a series of questions regarding the current absence, such
as whether it is related to an injury or illness, date of onset, whether treatment or
medication has been prescribed; the existence of co-morbidities and other
workplace barriers affecting the Employee’s return to work, and whether any
restrictions and limitations are permanent etc.; and a third page which includes a
checkbox form inquiring about the employee’s current functional restrictions and
limitations, including behavioral/cognitive limitations.
The Union Position
Supervisor vs Oncidium
[21] The Union submits that pursuant to Article B6.06 (i)(ii) and (v) of the Collective
Agreement, employees are entitled to provide their health information regarding
their entitlement to sick benefits and Short Term Disability (“STD”) information to,
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and deal with their own Supervisor, and can't be forced to deal with a third party
service such as Oncidium.
Medical Certificate vs Attending Physician Statement
[22] The Union further submits that the Employer, at least in the first instance, is only
entitled to a medical certificate which complies with Article B6.06 (iii). It
maintains making entitlement to sick benefits subject to any more detailed
information is a violation of the Collective Agreement, and arbitral jurisprudence.
[23] The Union conceded there may be instances, such as in the case of a lengthy
absence, when seeking the level of detail contained in the Attending Physician
Statement may be appropriate. However, the Union submitted it was too broad
an inquiry, in all first instances of an absence, and requests information beyond
that necessary to substantiate the boni fides of the absence.
[24] The Union submitted the requirement for a completed Attending Physician Form
is inconsistent with the clear language of the Collective Agreement, and with the
general arbitral jurisprudence which directs that when dealing with highly
personal medical information, the least intrusive approach should prevail. It
suggested that in this instance the Employer’s approach was the most intrusive,
simply because it is the easiest. The Union maintained this is improper and
should not be permitted.
The Employer Position
Supervisor vs Oncidium
[25] The Employer pointed out that contracting out the disability and sick leave
adjudication function is a common practice, and widely recognized as a
management right. (Hamilton Health Sciences, supra; sanofi pasteur, supra;
Canadian Bank Note Co., supra; and Columbia Forrest Product, supra)
[26] It submitted the Union’s argument was, in effect, that it could not contract out the
Supervisor’s function, as set out in B6.06, which is a management function. The
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Employer submitted it is trite law that explicit language is required to prohibit the
contracting out of bargaining unit work. (see: Brown & Beatty, Canadian Labour
Arbitration, 5th Edition 5:1310; Columbia Forrest Products, supra; Atlantic
Packaging Products Ltd., supra). Further, despite references in a collective
agreement to employees performing management work, there was no question
that managerial functions can be contracted out, as it has done in this instance.
[27] The Employer submitted the reference in Article B6.06 to the role of the
“Supervisor” does not establish a “right” as argued by the Union, but rather is
simply a description of whom to give the medical certificates to, assuming the
Employer is performing the function it has contracted out to Oncidium.
[28] In that regard, the Employer suggested a parallel existed between the language
in B6.06 in this instance, and the collective agreement language in Inergi LP and
Society of United Professionals, supra. Arbitrator Stout set out those provisions
at paragraph 12 as follows:
12 There is no dispute that the Sick Leave Plan and Long Term Disability
Plan are incorporated by reference into the Collective Agreement.
Relevant to this proceeding are the following portions of the Sick Leave
Plan:
Introduction
The Sick leave and long term disability plans are insurance benefits
provided by the company to all employees at no cost to the employee.
These plans serve to protect the incomes of employees in the event of
illness or disability and provide services to encourage a speedy recovery
and return to work.
How Do I Make a Claim for Sick Leave?
If you are unable to come to work because of illness or injury, you must
report this to your supervisor, before your normal starting time. Usually
this will be done by telephone. You are not required to confide personal
medical details; however, you may be required to satisfy the company that
your illness is genuine and serious enough to keep you from work. You
should also tell the supervisor how long you expect to be away and make
arrangements for any meetings or other obligations which will have to be
rearranged. [emphasis added]
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What Type of Information Needs to be Provided to Support a
Continued Absence?
You should keep your supervisor informed of your likely return date if you
are going to be absent for more than 1 day. If you remain away for 5 days
or more, you and your doctor must complete a "physician's report" and
return it to the health services department. It is important to note that this
information should be provided to health services promptly so that details
regarding your readiness to return to work can be provided to your
supervisor. Failure to return this information may result in suspension of
sick leave benefits. Any fees charged by your physician for completing the
report are your responsibility.
Note for Society represented staff - you will be reimbursed for any
physician's notes required by the Company. [emphasis added]
After being absent on sick leave, I may be able to return to work in a
modified capacity through either modified duties or part-time work. Is
consideration given to this?
Yes, the company will make every effort to accommodate you in modified
duties or on a modified return to work schedule that will be supported by
your doctor. The company provides the services of a professional
rehabilitation caseworker to all employees who have been assessed and
have a need for it. The caseworker will work with you, your doctor and
supervisor to develop a return to work plan, which fully considers your
medical needs, and work restrictions. You have the right to include your
employee representative in the rehabilitation process. The first priority is to
get you back into your own job. This may require modifications to the duties,
tools or hours worked. If this is impractical, then you may be given the
chance to try a different job. Retraining or special therapy or treatment will
be provided if needed to help you develop the new skills need to continue
your career with the company. [emphasis added]
[29] In that instance the Company had retained Oncidium and the Reed Group to
administer the Sick Leave Plan. In accordance with the Sick Leave Plan a
"Physicians Report" was required if an employee was absent for five days or
more.
[30] The Employer points to the references above to “supervisor” and “Health
Services Department” and notes that in that instance, no one had argued this
precludes Oncidium from administering the program.
[31] The Employer submitted the Oncidium process in this instance, has been
designed to involve greater expertise regarding personal health information than
that of the Supervisor. The Employer maintained having a third party
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professional receive and use its expertise in assessing the information, is
preferable to turning the information over to someone in Human Resources.
[32] Rather, under its process, Oncidium receives and assesses the personal health
information. It then provides a functional case summary, indicating what the
employee can and cannot do in the workplace to the Employer, maintaining the
rest in confidence.
Medical Certificate vs Attending Physician Statement
[33] The Employer submitted forms such as the Attending Physician Statement are
now relatively common.
[34] It maintained it is entitled to the information sought, and in some instances is
required to gather such information in order to make an informed decision.
[35] Rather than violating the language of the Collective Agreement, the Employer
argued the forms served the language of the Collective agreement.
[36] The Employer also relied on Vice-Chair Harris’ decision between these same
parties in GO Transit and ATU 1587, supra. In that decision, Vice-Chair Harris
endorsed the purpose and intention of the requirement of a medical certificate in
order to return to work following a medical absence of more than five consecutive
work days.
[37] Specifically, he noted the Collective Agreement reference in what is now B6.06
(v) to requiring such a medical certificate as it “…protects both the individual from
harm and GO Transit from any liability due to further complications of the
sickness or injury.” Vice-Chair Harris concluded the purpose of that provision
was to satisfy the Employer regarding the employee’s fitness to return to work,
either to full or modified duties.
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[38] The Employer submitted its duty pursuant to the Human Rights Code requires it
to gather information and undertake steps to return absent employees to work as
soon as possible, and if necessary with modifications and accommodations,
[39] The Employer submitted the parties have negotiated Article 8.8 to address this
duty.
[40] Article 8.8, set out above and titled “Medical Placements”, addresses the
respective rights and obligations regarding accommodating employees when it
has been established, through a medical practitioner, either that the employee
has a permanent partial medical disability, or is temporarily unable to continue to
fulfil all the requirements of the employee’s own classification due to medical
reasons.
[41] The Employer submitted this provision sets out a scheme of obligations to
accommodate such employees by moving them into other positions within the
organization at the earliest opportunity. It submits Article 8.8 interfaces with the
provisions of Article B6.06 and that they, in effect, ought to be read together.
[42] The Employer also pointed out, and there was no dispute, that the duty to
accommodate employees with a disability pursuant to the Human Rights Code is
both procedural and substantive. (See Goad v 1681078 Ontario, supra).
[43] The Employer maintained the procedural aspect of the duty to accommodate
involves obtaining all relevant information about the employee’s disability, and
submitted its requirement for a completed Attending Physician Statement is
consistent with that duty. (see ADGA Group Consultants, supra).
[44] Further, the Employer pointed out that when an employee qualifies for short-term
disability benefits, this does not relieve the parties from their respective
obligations related to the duty to accommodate. (see Columbia Forrest Products,
supra).
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[45] The Employer pointed out there are more that 100 diverse positions within the
organization. It maintained that in order to meet its duty to accommodate, and
determine which positions are suitable for such accommodation, it requires
information regarding employees’ restrictions and limitations.
[46] The Employer submitted this is precisely the information it was seeking pursuant
to Article B6.06, and together with Article 8.8 demonstrates it has a legitimate
purpose in seeking the information in the Attending Physician Statement, in the
first instance.
[47] The Employer further submitted that given the number and variety of positions
which may be appropriate for accommodation of employees unable to perform
their own duties, it was unrealistic to leave it solely to the attending physician to
determine if the employee can perform other duties available within the
organization.
[48] The Employer maintained the same position regarding the inquiry about any co-
morbidities. It points out a similar concern raised in Canada Bank Note Co.,
supra was dismissed by Arbitrator Surdykowski as follows:
52 However, the Union objects to the request in Question #1 for
complicating factors affecting recovery, which is a follow-up to asking
whether the expected length of the absence is within "normal convalescent
period" expectations for the particular illness or injury. The Union's concern
is that this may unnecessarily reveal too much medical history. I am not
satisfied that this part of the Cowan Form overreaches. It is legitimate for
an employer to ask whether the employee may be off longer than expected
for the reported injury and whether that is because of complicating factors.
The question does not ask what those complicating factors are, and it is
that and not that fact that they exist which might be revealing of medical
history.
[49] Accordingly, the Employer submitted that to limit it to the minimum information
set out in Article B6.06 (iii) was insufficient to determine whether an employee
can be brought back to modified duties. It pointed out that included in the wide
range of positions it must consider for accommodation are those that are safety
sensitive and would preclude placing in them, someone with cognitive limitations.
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[50] The Employer submitted the test to be applied is whether the purpose of the
forms is legitimate, and the means reasonable. The Employer maintained its
process and forms meet that test. It further submitted that all it really wanted to
know was can an employee medically do the work in which the employee could
be accommodated, and on that basis it was not appropriate to limit the Attending
Physician Statement to the particular circumstances that gave rise to the
employee’s current absence.
[51] The Employer further argued that even if the Union is correct and there is some
connection between Article B6.06 iii and v., which it disputes, then all we know is
that a medical certificate cannot have less than what is set out in Article
B6.06(iii).
[52] The Employer pointed out that more comprehensive forms such as those at issue
in this instance have been found to be included in collective agreement
references to “medical certificate”. (See Revera Long Term Care Inc. v. ONA,
supra, and Inergi LP, supra).
[53] The Employer pointed out the practical impact of Union's position is significant,
as it would require the sending of two separate forms, the first dealing with
entitlement to benefits, and the other to gather the information it requires in order
to meet its Article 8.8 obligations.
[54] The Employer submitted this would introduce unnecessary delay; be confusing
and an inconvenience for employees who are unwell; and be an unnecessary
burden administratively and to the health care system.
Analysis:
Supervisor vs Oncidium
[55] As indicated earlier, there is no dispute that the language of the Collective
Agreement is of primary importance in determining the respective rights and
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responsibilities in assessing entitlement to sick leave benefits and administering
a medical leave program.
[56] Further, given the importance of maintaining the privacy of employee’s health
information, any governing provisions ought to be strictly construed. As
reiterated by Arbitrator Surdykowski at paragraph 34 of his decision in Canadian
Bank Note Co., supra:
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. [emphasis added]
[57] This was further endorsed by Arbitrator Levinson in his decision in Greyhound
Canada Transportation Corp., supra at paragraph 18, where he stated in part:
Given the significance of an individual's right to privacy with respect to
confidential medical information, the relevant collective agreement
provisions potentially pertaining to the release of, and Company access to
confidential medical information should be strictly construed.
[58] The Employer is correct that, as a general matter there is nothing to prevent an
employer from contracting out the information gathering or assessment of
medical information function, as the Employer has done in this case.
[59] However, an Employer’s right to contracting out any function is subject to any
specific provisions in the governing collective agreement which addresses these
functions.
[60] In interpreting the language of a collective agreement, it is presumed that all of
the words were intended to have meaning, and that words ought to be given their
plain meaning. The language in this collective agreement differs from that in the
other cases referenced, as it specifically refers to communication regarding an
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employee’s absence in the first instance, as being between that employee and
that employee’s Supervisor.
[61] While the Employer attempted to draw a parallel between the language in B6.06
in this instance and the collective agreement language in Inergi LP and Society
of United Professionals, supra, the critical distinction is that in Inergi LP, the
provisions of the Sick Leave Plan and Long Term Disability Plan, which were
incorporated by reference into that collective agreement, expressly required a
completed "physician's report" be returned to the health services department.
Those elements are absent in this instance and cannot be read in.
[62] Rather, I find the language in Article B6.06 (i)(ii) & (v) is unequivocal. It clearly
provides that, at least in the first instance, employees are entitled to provide
information to, and deal with their own Supervisor when they are absent due to
illness or injury.
[63] This is an entitlement the Union has negotiated for its members and I find they
cannot be compelled to provide information to a third party such as Oncidium
pursuant to Article B6.06 (i)(ii) or (v).
[64] Accordingly, I find the Employer cannot unilaterally require that employees or
their physicians communicate with Oncidium in the first instance of claiming sick
leave and STD benefits, and to do so constitutes a violation of Article B6.06 of
the Collective Agreement.
Medical Certificate vs Attending Physician Statement
[65] In the absence of a broader entitlement negotiated in the collective agreement,
the arbitral and judicial jurisprudence referenced by both parties has determined
the employer’s entitlement to information in order to verify an employee’s
entitlement to sick leave and/or STD, in the first instance, is limited. Specifically,
employers are entitled to know the employee is unable to work due to illness or
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injury; the expected date of return to work; and what work, if any, the employee
can do.
[66] That is well articulated by Arbitrator Surdykowski in the following paragraph in
Hamilton Health Sciences, supra:
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.
[67] Further, in this Collective Agreement, the parties have turned their minds to the
information an employee must provide, in the first instance, to the Employer to
obtain sick leave/STD. Both Article B6.06 (i) and (v) refer to the requirement to
provide a “medical certificate”. Article B6.06 (iii) sets out what is to be included in
the “medical certificate” i.e.
(a) date the employee was first seen by physician and confirmation that
the employee is under doctor’s care;
(b) prognosis of return to work date and confirmation that the employee
cannot work;
(c) for return to work, that the employee is now medically fit to resume
his/her full duties.
[68] Article B6.06 does not differentiate between any of the references to “medical
certificate” in that Article. Rather, B6.06 (v) simply requires that the medical
certificate be “satisfactory”.
[69] It is a fundamental principle of contract interpretation that where the same word,
or phrase in this instance, is used twice it is presumed to have the same
meaning. (Brown & Beatty - 4:2120, supra.)
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[70] If the parties had intended that a more comprehensive document, such as the
Attending Physician Statement, be required for any and all absences longer than
5 days, then it was certainly open to them to indicate that. However, I find that,
as currently written, the language of Article B6.06 does not require more than a
medical certificate which satisfies the agreed to requirements of Article B6.06 (iii).
[71] This is similar to Arbitrator Goodfellow’s decision in Revera Long Term Care Inc.
v. CUPE, supra. In that case, Arbitrator Goodfellow found the following collective
agreement language militated against the employer requiring considerable more
information on a form of its own creation.
11.09 …
The employer may require a returning employee to provide a doctor’s
certificate certifying that the employee was under the doctor’s care during
the period of absence, that the illness or injury prevented the employee
from attending work, and that the employee is now able to resume her
regular duties…
[72] The form in that instance was similar to the one in dispute before me in terms of
granting broad consent to release any medical and health information (related to the
employee’s current absence from work) and/or need of modified or accommodated work
not only to a third party managing its sick leave program, but to any independent
evaluators, agents and consultants acting on behalf of that third party. The form also
contained sections on functional/cognitive abilities information.
[73] Arbitrator Goodfellow concluded, at the top of page 27 as follows:
Regardless of the reason, however, or of any misgivings we might have
about the merits of such a concern generally, the Union seems to have
clearly bargained for this outcome and it is entitled to it. A “form”, such as
the APS, is not permitted to be used as the required vehicle for the
gathering of employee medical information at least in what the cases refer
to as “the first instance”, i.e. prior to a reasonable, case-by-case,
determination of a need for greater information.
… The collective agreement is not silent, it is not ambiguous, and it
expressly does not permit routine demands for medical information of the
kind reflected in the APS. Such requests may not be made, as the
collective agreement clearly states, as a matter of course or in what the
case law refers to as the “first instance”. That is evident from the structure
and language of Article 11.09 … .
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[74] Arbitrator Goodfellow’s determination was bolstered by the fact the collective
agreement had formerly contemplated the use of a “form” to be provided by the
Employer for the collection of the medical information. However, the Employer
never provided such a form, and it was only after the parties amended the
collective agreement to remove that reference that the Employer introduced the
Attending Physician Statement at issue. However, Arbitrator Goodfellow’s
decision demonstrates the primary importance of the collective agreement
language.
[75] I reach the same conclusion in this instance.
[76] Despite the Employer’s reliance on Article 8.8 to argue it needs far more
information in the first instance than may be the case in other contexts without a
similar provision, I am not persuaded such is the case. Nothing in Article 8.8
suggests it is intended to override the specific language of Article 6.06.
[77] Further, while parties must always be attuned to facilitating a return to work as
soon as reasonably possible, the issue of returning to accommodated work in
positions other than the employee’s own would not, in most instances, be a
timely discussion in the first instance of an employee’s absence, where the focus
is on establishing entitlement to sick leave time and/or STD benefits.
[78] Rather, the Union argued, and I accept that the assessments required pursuant
to Article 8.8, rather than being triggered in the first instance, are made during
the course of the absence and not at the front end.
[79] Accordingly, the Attending Physician Statement goes well beyond the negotiated
information limits set out in Article B6.06 (iii) and ought not to be required as part
of the process for qualifying for sick leave or STD benefits as doing so violates
the negotiated requirements of the Collective Agreement set out in Article B6.06.
[80] This conclusion is not only consistent with the clear language of the Collective
Agreement, but it is also consistent with the arbitral jurisprudence, that has
-29-
consistently held that, subject to the provisions of the Collective Agreement, and
governing legislation, employers’ entitlement to employee’s medical information,
in the first instance, is limited to establishing entitlement to sick leave or STD
benefits. As Arbitrator Surdykowski stated in Hamilton Health Sciences, supra at
paragraph 27:
27. The several layers of legitimate employer interests suggest that there
is more than one stage to the process that is engaged when an employee
seeks the benefit of the sick leave provisions in a collective agreement. It
also suggests that the employer will generally be entitled to less
information at the initial stage than at a subsequent stage. The
employer's desire for more information, or its genuine concern for an
employee's well-being or desire to assist the employee, do not trump the
employee's privacy rights. Nor do questions of expediency or efficiency.
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 specified 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.
[emphasis added]
[81] Accordingly, it would take much clearer language to find the parties had agreed
to significantly depart from the norm.
[82] Nor, given the language of the Collective Agreement, is the employer entitled to
unilaterally impose such a departure. That is the bargain these parties have
made.
[83] As stated by Arbitrator Levinson at paragraph 9 in his decision in Greyhound
Canada Transportation Corp., supra in a case dealing with the information to
which an employer is entitled in the first instance:
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9. … If Greyhound wished to have a specific form completed by a
physician, it could have negotiated the content of this form with the Union.
The Company cannot unilaterally decide the content of this form, especially
when the form they are using asks for information well beyond that which
has been found to be legally acceptable. Provision of a medical certificate
will, except in rare cases justify the immediate payment of sick benefits.
There is no need for the company doctor to review the medical information
of the employee claiming sick benefits once a medical certificate has been
provided, and the Company's process merely delays the processing of sick
benefit claims unnecessarily. …
[84] Of course, there is nothing precluding the employee from providing additional
information to that set out in Article 6.06 (iii). If an employee’s illness or injury is
such that the employee is able to return to work with some accommodation at
that time, it would be consistent with the employee’s obligations to advise the
employer of the accommodation required at the earliest opportunity.
[85] Similarly, if an employee has a condition that requires surgery or a course of
treatment before there is an chance of returning to employment, it is in all parties’
interest for that to be communicated as early as possible. This will facilitate the
employer’s ability to schedule and manage work, and will preclude the employee
being subjected to premature requests for updates.
[86] Similarly, if the employer has an objectively reasonable basis on which to require
additional information, then it may require that information from the employee.
This ensures the employee is aware of any potential issues at an early point in
time, and gives the employee and union an opportunity to determine whether the
additional information sought is reasonable in the circumstances, or whether it
wishes to challenge the request. It is not, however, entitled to an automatic
second opinion simply to challenge the employee’s eligibility for benefits. (see
Central Care Corp., supra at paragraph 84)
[87] For the reasons set out above, I conclude it is a breach of the Collective
Agreement, if the Employer requires employees to provide Oncidium with a
completed copy of the current Attending Physician Statement – STD/Sick Leave
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in order to request and be provided with sick leave and/or sick pay for absences
of more than 5 consecutive work days.
[88] I note that the Union also submitted a number of specific challenges regarding
the information required by the Attending Physician Statement. However, in light
of my determination above, there is no need to deal with them in relation to
employees’ entitlement to STD/Sick Leave.
[89] Accordingly, I have not set out the Union’s detailed challenges at this juncture, as
they arise again with regard to the documentation required to request and
receive accommodation, which is dealt with below.
ISSUE # 2 – ATTENDING PHYSICIAN FORM – ACCOMMODATION:
[90] The next issue to be determined is:
Is it a breach of the Collective Agreement, the Human Rights Code,
the Occupational Health and Safety Act, the Personal Health
Information Protection Act (if applicable), or any other statute if the
Employer requires employees to provide Oncidium with a completed
copy of the current Attending Physician Statement – Accommodation
in order to request and be provided with accommodations for
disability?
Cover Letter
[91] The Letter sent to employees who are requesting accommodation states:
It has been brought to our attention by your Manager or Supervisor that you
have requested an accommodation in order to continue working. As a part
of our workplace accommodation process, Metrolinx uses Oncidium as its
independent disability management service provider to assist us in
clarifying your medical restrictions and limitations and provide us with
functional case information to assist in the accommodation process.
Oncidium's role is to support our Employees, while ensuring that all
confidential medical information is protected and only disclosed with your
consent or if required by law.
Please submit the enclosed Attending Physician Statement to Oncidium
within 10 days from the date of this letter. If you are unable to submit by
this date, please contact XXXXXXX@metrolinx.com as soon as possible to
discuss alternate options. Once received, a representative from Oncidium
will reach out to you by phone to discuss next steps.
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Following the completion of the review, Health and Wellness will be in
contact with you or your Manager to discuss the outcome of the review.
Oncidium can be reached at:
XXXXXXX
[The letter also sets out the availability of the EFAP and ECO programs to the
employee and family]
Attending Physician Statement – Accommodation
[92] The Attending Physician Statement for Accommodation is attached as Appendix
B.
[93] The first page of the Attending Physician sets out the Consent the employee is
required to complete. For ease of reference it is reproduced below:
I hereby authorize my Attending Physician and any Specialist identified in
Part B below, to release to ONCIDIUM the information requested below
related to the injury or illness which is currently impacting on my ability to
work. I agree and acknowledge that ONCIDIUM may consult with my
Attending Physician and any Specialist identified in Part B for clarification
of the information provided in this form. I authorize my Attending Physician
and any Specialist identified in Part B to release to ONCIDIUM
documentation which serves to clarify the information provided in this form.
I agree that any information provided to ONCIDIUM may be used by
ONCIDIUM to determine whether I am able to work, with or without
accommodations and, if not, when I will be able to do so. If an independent
provider is retained by ONCIDIUM to conduct a medical or functional
examination, evaluation or assessment for any of the aforementioned
purposes, I agree that ONCIDIUM may release to it all relevant medical
information and documentation in ONCIDIUM’s possession, including the
medical information requested below.
I permit and authorize ONCIDIUM to provide my Employer with a functional
case summary which may include information related to medical
restrictions and limitations, and modifications necessary for me to continue
to work. I further agree that ONCIDIUM may provide a copy of any medical
report(s) generated by it or its agents to my Attending Physician and any
Specialist identified in Part B.
I have read the above authorization and express my consent by affixing my
signature below. I agree that this consent shall continue to have effect for
the duration of Oncidium’s assessment of my capacity to work, and any
period of accommodation, unless this consent is revoked by me in writing.
I agree that a photocopy or electronic version of this authorization is as
valid as the original.
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[94] The second page of the Attending Physician Statement asks the physician for
specific information to support the employee’s accommodation. It includes the
following inquiries, again set out for ease of access:
STATEMENT OF IMPAIRMENT
Nature of illness or injury currently impacting on ability to work (do not provide
diagnosis):
Date employee became incapable of working full duties:
DISABILITY INFORMATION
Current reduced capacity to work is related to: ☐Illness ☐ Injury
To the best of my knowledge, this employee is totally disabled from: _____ / _____ /
_____ to _____ / _____ / _____
Is the Employee undergoing treatment for the injury/illness referenced above: ☐ Yes ☐
No
Is the Employee following the treatment plan?: ☐ Yes ☐ No
Has the Employee been referred to a Specialist: ☐ Yes ☐ No If yes, Name: Date:
Have any medications been prescribed for the injury/illness that could affect the
Employee’s ability to perform safety sensitive work: ☐ Yes ☐ No
If yes, please explain (eg. medication may cause drowsiness) and provide the expected
duration:
Is any treatment in place for the injury/illness that could affect the Employee’s ability to
consistently attend at work: ☐ Yes ☐ No
If yes, please explain (eg. treatment may require intermittent absences from work, etc.)
and provide the expected duration:
Are there any co-morbid conditions or complications impacting recovery? ☐ Yes ☐ No
If yes, please explain (do not provide diagnosis):
Are there any workplace barriers unrelated to illness or injury affecting the Employee’s
return to work: ☐ Yes ☐ No
If yes, please describe the impact:
Please list any other factors delaying the recovery process:
Are the Employee’s medical restrictions and limitations permanent: ☐ Yes ☐ No
If no, what is their estimated duration:
How is the performance of the Employee’s job impacted by their medical restrictions and
limitations?
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Please describe any accommodations/modifications proposed:
[95] The 3rd page contains the following requests for information:
PROGNOSIS / CAPABILITIES
Estimated date of return to full duties (if applicable) (MM/DD/YY)
Employee’s current functional restrictions and limitations are:
A. SITTING / STANDING / Occasional Frequent No limitations
WALKING (check all that apply) (0-33%) (34-66%)
Sitting / Standing ☐ ☐ ☐
Walking ☐ ☐ ☐
Climbing ☐ ☐ ☐
Bending/Twisting ☐ ☐ ☐
B. LIFTING FLOOR TO WAIST
Sedentary (up to 4.5 kgs) ☐ ☐ ☐
Light (4.6 – 9.0 kgs) ☐ ☐ ☐
Medium (9.1 – 22 kgs) ☐ ☐ ☐
C. LIFTING WAIST TO SHOULDER (check all that apply)
Sedentary (up to 4.5 kgs) ☐ ☐ ☐
Light (4.6 – 9.0 kgs) ☐ ☐ ☐
Medium (9.1 – 22 kgs) ☐ ☐ ☐
There is also a section for “COMMENTS” such as Distance, Duration,
Height/Frequency and Body Part Affected.
[96] The next section is as follows:
D. BEHAVIOURAL/COGNITIVE LIMITATIONS (check all that apply)
☐ Verbal communication ☐ Ability to work cooperatively ☐ Tolerance of emotional situation ☐ Ability to concentrate/attend to details ☐ Able to follow & provide Instruction ☐ Tolerance of confrontational situation ☐ Ability for self-supervision ☐ Responsibility and accountability ☐ Ability to supervise others ☐ Reading literacy ☐ Ability to tolerate time pressures ☐ Writing literacy ☐ Performance of multiple tasks ☐ Numerical skills ☐ Tolerance of distracting stimuli ☐ Computer literacy
[97] There is also an open section for “Comments” related to the Behavioural/
Cognitive Limitations.
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[98] The final section is as follows:
E. TRAVEL
Ability to drive: ☐ Yes ☐ No
Ability to use public transit: ☐ Yes ☐ No.
Union Position:
[99] The Union pointed out the Attending Physician Statement to be utilized when an
employee requests accommodation makes no attempt to tailor the questions to
address the circumstances of the individual employee who seeks
accommodation, as required by arbitral jurisprudence and the Human Rights
Code.
[100] Rather, the Employer, through Oncidium, utilizes a “blanket shotgun” approach,
regardless of the disability at issue or the accommodation being sought.
Consequently, there is no distinction between, for example, an accommodation
request such as a change of work location or hours, which may affect seniority
rights, and requesting an ergonomic mouse.
[101] The Union conceded that such a broad inquiry may be appropriate in some
instances, but maintained it is entirely unreasonable and inappropriate in the vast
number of circumstances. Rather, it submits it is incumbent on the Employer to
take the nature of the illness and circumstances into account, prior to determining
which questions are appropriate.
[102] The Union also takes issue with the indication in the cover letter that Oncidium
will provide the Employer with “functional case information”. It points out it is
unclear to whom that information will be provided i.e. those responsible for
occupational health, or perhaps the employee’s supervisor.
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[103] Further, the Union points out that “functional case information” is not defined.
Nor is it a recognized labour relations term. The Union submits this creates
uncertainty regarding what information will be shared.
[104] The Union further submits that while the employee is requested to consent to the
sharing of information with the Employer, informed consent is not possible if
employees don't know what information is to be shared, and with whom.
[105] The Union submits that requiring a consent for Oncidium to contact the
employee’s physician and specialists in all instances following any request for
accommodation is inappropriate and clearly inconsistent with arbitral
jurisprudence.
[106] Further, the Union submits the required Consent for Oncidium to further consult
with physicians regarding the information provided within the Attending Physician
Statement is too vague, as is the Consent for the physician to release any further
information to clarify that already provided in the Attending Physician Statement.
[107] The Union pointed out this means Oncidium can call that employee’s physician
without the need to identify any deficiency in the form, and allows Oncidium to
engage in a free-wheeling discussion, including acquiring more documentation -
all without the employee being aware. The Union submits this is wildly
inappropriate.
[108] The Union also took issue with the requirement that employees consent to
Oncidium obtaining an undefined “independent provider” and releasing all their
highly personal and private medical information to that party, in the absence of
any indication as to how it is to be shared or protected. It pointed out that
independent provider may operate off-shore, where privacy protections are not
mandated, or the United States where such information can be accessed by
Homeland Security.
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[109] The Union also submits the requirement to have the “Attending Physician
Statement” completed within 10 days is not reasonable as some employees may
not be able to see their physician within that time. Further, given the details
required and length of the form, it may also take some time for the physician to
complete it.
Employer Position:
[110] The Employer submitted it was difficult to find cases dealing with challenges to
forms such as the Attending Physician Statement dealing with accommodation,
as it is understood that in order to meet its duty to accommodate, an employee’s
limitations and restrictions must be known.
[111] The Employer pointed out the focus of the Consent is on the information “related
to the injury or illness which is currently impacting on [the employee’s] ability to
work”, and the employee’s ability to return to work with or without
accommodation.
[112] The Employer submitted the intent was to avoid multiple consents, and
maintained the form was far from overly intrusive. Rather, it submitted consents
of that nature are relatively common. (See Revera Long Term Care Inc. v. ONA,
supra and Central Care Corp., supra). It maintained that in the latter, Arbitrator
Knopf did not consider a similar consent intrusive, and simply directed that it be
clarified to indicate it was limited to the current absence from work. Arbitrator
Knopf stated in Central Care Corp., supra at paragraph 34:
34 … In the next paragraph of the Form the Employer has attempted to
focus the implications of the consent with the words, "This consent
pertains to my current absence from work and/or my need for modified
work, and/or the current referral to ACCLAIM for services." This is helpful.
However, we are all too familiar with the demands upon health care
providers' time and many professionals' all too human inattention to
details on forms. Therefore, for clarity, emphasis and because of the
importance of limiting the Consent to information that simply pertains to
the specific absence from work for which benefits are being claimed, the
wording of the actual Authorization or Consent should be amended to
include the words, "relating to my current absence from work".
-38-
[113] The Employer also pointed out that similar to Oncidium’s form, the specialists or
independent providers are not identified in any manner including location, but
that was not raised as an issue that precluded contracting with them.
[114] The Employer submitted requiring a consent for each contact with the attending
physician would introduce unnecessary delay; be confusing and an
inconvenience for employees who are unwell; and be an unnecessary
administrative burden. The Employer relied on Arbitrator Knopf’s comments in
Central Care Corp., supra decision at paragraph 38:
38 … Each consent may be deemed to relate to the information being
requested for each absence. It is impractical for the Employer or ACCLAIM
to seek a signed consent each time it needs to contact a physician and it is
also an imposition on an injured or incapacitated employee to fulfill such a
demand for each inquiry on each claim. As directed above, the employees
will be signing consents that will be focused on the specific absence for
which benefits and/or accommodations are being requested. Therefore, for
practical purposes, one consent form should be deemed sufficient for each
claim. …
[115] However, I note Arbitrator Knopf added:
… However, this Employer must also respect the needs of employees to
be given notice each time that an immediate contact with the doctor has
been initiated. …
[116] The Employer also pointed out that at paragraph 28 of the Decision, Arbitrator
Knopf stated:
28. … [T]he Employer is only entitled to information relating to the particular
absence. Therefore, the employees should be advised clearly that once
their consent is provided, ACCLAIM may be contacting the attending
medical practitioners for clarification of information relating to the nature
of the illness/injury, whether there has been a treatment plan prescribed,
their expected date of return and any restrictions that pertain to their
particular absence. [emphasis added]
[117] The Employer submitted the pluralized reference to “practitioners” recognizes the
appropriateness of requiring a consent which authorizes consulting with
attending specialists, in addition to practitioners. The Employer further pointed
out the Consent Form at issue in Revera Long Term Care Inc. v. ONA, supra
also referred to Health Care Provider(s).
-39-
[118] The Employer also noted that Arbitrator Stout, in his decision in Inergi LP, supra,
at paragraph 62, noted that the PHIPA does not include any language that would
require multiple or a new consent every time personal health information is
disclosed. Rather, he stated that the fact that consent can be withdrawn leads
him to conclude consent will be valid so long as it complies with the elements of
consent found in the legislation.
[119] The Employer pointed out the Consents are clear they are limited to information
related to the injury or illness “currently” impacting on the employee’s ability to
work.
[120] The Employer disputed the Union’s suggestion that the Consents sought were for
an open-ended consultation between Oncidium and employees’ attending
physicians. Rather, it pointed out the authorization was limited to clarification of
information provided in the form. Similarly, the Consent for the Attending
Physician or any Specialist to release documentation to Oncidium was limited to
documentation which would serve to clarify the information already provided in
the form – all of which is related only to the illness or injury currently impacting on
the employee’s ability to work.
[121] The Employer submitted the focus of the information sought on the injury or
illness “currently” impacting on the employee’s ability to work limits its use to
assessment of the claim and/or request for accommodation, and whether the
employee can return to work.
[122] Further, if an independent provider is retained to conduct a medical or functional
exam pursuant to the second last paragraph of Article B6.06, that provider would
be given the same information.
[123] The Employer submits the Attending Physician Statement – Accommodation
accords entirely with the Collective Agreement and is, including the functional
case summary, all legitimate information to which the Employer is entitled
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pursuant to the Collective Agreement, as well as the Employer’s statutory and
Collective Agreement obligation to accommodate the employee in order to
facilitate a return to work as early as possible.
[124] The Employer also maintained this was consistent with arbitral jurisprudence.
Specifically, in his decision in Complex Services Inc. supra, Arbitrator
Surdykowski stated at paragraph 95:
95 The cases demonstrate that the following otherwise confidential medical
information will generally be required for accommodation purposes:
1. The nature of the illness and how it manifests as a disability (which may
include diagnosis, particularly in cases of mental illness).
2. Whether the disability (if not the illness) is permanent or temporary, and
the prognosis in that respect (i.e. the extent to which improvement is
anticipated, and the time frame for same).
3. The restrictions or limitations that flow from the disability (i.e. a detailed
synopsis of what the employee can and cannot do in relation to the
duties and responsibilities of her normal job duties, and possible
alternative duties).
4. The basis for the medical conclusions (i.e. nature of illness and
disability, prognosis, restrictions), including the examinations or tests
performed (but not necessarily the test results or clinical notes in that
respect).
5. The treatment, including medication (and possible side effects) which
may impact on the employee's ability to perform her job, or interact with
management, other employees, or "customers".
[125] In G & K Services Canada Inc. supra, Arbitrator Gee added “Any further
information that the Employer legitimately requires in order to investigate
accommodation options”, to the above list.
[126] The Employer also pointed out that the duration of consent is limited in terms of it
being only with respect to the one period during which the employee’s ability to
work is impacted for a particular reason. While this can continue for the period
an employee remains in an accommodated role, it can also be revoked at any
time.
-41-
[127] Accordingly. the Employer submitted the information sought in the Attending
Physician Form was not some far ranging inquiry, but rather was construed
narrowly to address only the illness or injury related to the "current" absence or
accommodation.
[128] Similarly, the Employer submitted the third page of the form was again focussed
on the employee’s “current” functional restrictions and limitations.
[I note, however, the third page of the Accommodation-related Attending
Physician Statement does not include the term “current”, but rather refers only to
the “Employee’s functional restrictions and limitations.]
[129] The Employer submitted the forms were a thoughtful focus on only the
information required for a legitimate purpose under the Collective Agreement and
Statutes.
[130] In response to the Union’s concerns regarding the request that the forms be
completed and submitted within 10 days, the Employer pointed out the form was
clear that if that was a problem the employee could contact the Employer and
discuss “alternate options”. It also pointed out there was no evidence before me
that that provision had been unreasonably applied.
Analysis:
[131] As pointed out by Employer Counsel, much of the jurisprudence deals with the
medical information an employee can be required to give at the first instance of
illness or injury. However, there is arbitral consensus that, as indicated earlier,
the analysis exists on a continuum, with potentially the highest degree of medical
information necessary arising in the situation of an employee who is not able to
fully perform the essential duties of their own position, and requiring
accommodation either in the form of a modified schedule or modified work.
-42-
[132] As Arbitrator Lanyon wrote in Telus Communications Co. and
Telecommunications Workers Union (Denial of Benefits Grievance) [2010]
C.L.A.D. No. 11, referenced by Arbitrator Knopf at paragraph 12 in Central Care
Corp:
…
85 However, both parties acknowledge that in respect to issues such as
an employee's fitness to return to work, or in cases of accommodation, an
employer is given greater access to medical examinations and
information. For example, a Functional Capacity Evaluation from an
Occupational Health Physician may be required. This involves the
employer and the employee providing a detailed description of the job
duties, as well as the history of the illness and injury which may determine
an employee's fitness to perform their own occupation or any other
occupation. This may also involve other specialists. It is well established
public policy that all parties are obligated to assist in the accommodation
of employees.
86 However, even in respect to this wider sphere of entitlement there are
still restrictions. For example, the employer is entitled only to the specific
information required to make its determinations (Accenture Business
Services for Utilities, supra). The employer is not entitled to "impose
additional requirements with respect to medical examination and
certificates" (Braemore, supra). For example, if the injury concerns an
employee's back, the employer is not entitled to that employee's
psychiatric or sexual history. Perhaps this is simply another way of stating
that the employer is only entitled to that information which is
reasonably necessary. [emphasis added]
. . .
[133] Accordingly, even on the higher end of the continuum, as suggested by Arbitrator
Lanyon, restrictions remain, and similar considerations apply in terms of the need
to find a balance between the medical privacy rights of the employee, and the
Employer’s need for sufficient information to meet its duty to accommodate and
operate its business.
[134] I do not understand Arbitrator Surdykowski’s list in Complex Services Inc. supra,
of the types of information to which an employer may be entitled, (set out in
paragraph 125 above) to be a departure from the need to balance the
employee’s medical privacy rights with the employer’s legitimate need for
information. Certainly, Arbitrator Surdykowski’s suggestion this “may” include a
-43-
“diagnosis”, particularly in cases of mental illness, is simply obiter and ought not
be read to suggest that would be the case in most instances.
[135] As Arbitrator Layton noted, if the injury concerns an employee's back, the
employer is not entitled to that employee's psychiatric or sexual history.
[136] Further, as stated by Arbitrator Gedalof’s in Columbia Forrest Products, supra, at
paragraph 49:
49. In its current form, the initial application for the WI benefit seeks a
description of the employee’s “current limitations”, or that the attending
physician “complete Section B [the functional and cognitive abilities
checklists] if applicable”. This broad an inquiry at first instance into an
employee’s state of physical and mental health, absent a factual
foundation for finding that this information is relevant to a particular
employee’s circumstances and is necessary to ascertain eligibility
for the WI benefit, conflicts with the principles set down by the
Divisional Court in St. Joseph’s Health Care. It also conflicts with the
general principle articulated in Hamilton Health Sciences and the many
cases following it that an inquiry into an employee’s state of health, while
necessary and appropriate in order to establish an entitlement to benefits,
should be minimally invasive. An employee who is off work due to a
back injury, for example, ought not to be required to immediately
disclose a cognitive disability that has no impact on her or his ability
to work, and which may never be relevant to assessing a return to
work. [emphasis added]
[137] At issue in the Divisional Court decision in St. Joseph’s Health Care, referenced
by Arbitrator Gedalof, were questions regarding two aspects of mental health the
Hospital required answered prior to the grievor, a registered nurse, being allowed
to return to work following "surgery of a gynecological nature".
[138] The majority of the Court held that before requiring intrusive medical questions
be answered, consideration need be given to the purpose of such inquiries. It
held that as the grievor had been absent for physical and not mental reasons,
there is no evidentiary basis supporting a reasonable and probable ground for
believing that the condition which led to her absence had any potential
psychiatric or psychological consequences for the grievor's ability to perform her
job. Accordingly, no psychological or psychiatric information or examination was
appropriate.
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[139] The Court recognized at paragraph 21 that "[a] psychiatric or psychological
examination is a highly intrusive and sensitive procedure and should only be
available to employers in cases where the necessity for it has been firmly
established.
[140] While Arbitrator Gedelof was dealing with an application for benefits in the first
instance, the Divisional Court was not. However, both decisions are important in
their emphasis on the need to limit information regarding an employee's cognitive
or psychiatric status unless the necessity for such information has been “firmly”
established.
[141] It is medical information of this nature which ought to attract the greatest respect
for the employee's privacy, as it carries with it, unfortunately, the potential for
stigma over and above any physical illness.
[142] Accordingly, the least intrusive approach must again be utilized to acquire the
necessary information, while the breadth of what is reasonably necessary may
be broader depending on the particular circumstances. Generally, the question
of the nature and breadth of medical information required to be provided will
depend on the circumstances of each employee. The critical governing principle
is that this must be determined on a case by case basis.
[143] Accordingly, I agree with Arbitrator Gee’s comment in G & K Services Canada
Inc. supra, in that employers would be entitled to “[a]ny further information that
the Employer legitimately requires in order to investigate accommodation
options”. The focus is on “legitimately”.
[144] This will often require information to be provided on an incremental basis, as the
employee’s situation will change with time and treatment. It will also require that
the information requested be tailored and limited to the particular work to be
performed, as well as the accommodation being requested.
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[145] These assessments cannot be made in a vacuum. In order for a physician to
make an informed assessment, consideration ought to be given to providing the
physician with sufficient information to enable her to understand the demands of
the duties to be performed.
[146] Further, decisions related to assisting disabled workers are intended to be a “joint
problem solving” exercise when accommodation is necessary. It requires the
employer, employee and union to participate and provide the necessary
information to facilitate the search for appropriate accommodation. (see
Columbia Forrest Products, supra at paragraph 44).
[147] However, as pointed out by the Union, the accommodation sought could range
from requesting an ergonomic mouse to seeking a modified work schedule. The
medical assessment required can vary dramatically, and ought to be
proportionate to the circumstances.
[148] As indicated above, it is open to employees who have been absent because of
illness or injury to provide a medical certificate pursuant to Article 6.06 (v) which
contains sufficient information to facilitate their return as soon as possible, even
with some modest and/or temporary accommodation. If sufficient detail is
provided, this might obviate the need for any further medical inquiry. For
example, if the injury is a broken leg, the only required accommodate may be a
parking spot closer to the building, or sedentary work during the anticipated
recovery period.
[149] However, if additional clarification is reasonably required, the employer or the
health service provider with which it has contracted, is entitled to that clarification.
In keeping with the employee’s ongoing role in the search for appropriate
accommodation, that request for additional information ought to be made through
the employee, or only with the employee’s informed consent to seek such
clarification directly from the physician.
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[150] At the other end of the spectrum, as conceded by the Union, there may be
instances where a more detailed medical assessment is appropriate and
necessary.
[151] Such instances might include situations where the disabled employee may need
temporary or permanent accommodation that is more complicated or challenging,
in order to enable them to perform the essential duties of their position.
[152] In his decision in Complex Services Inc. supra, Arbitrator Surdykowski stated at
paragraphs 94:
94 When a bargaining unit employee claims she has a disability and seeks
accommodation, with or without a break in active employment, the onus is
on the employee to establish the nature and extent of the disability and
consequent restrictions, and the accommodations required. The employer
can but is not obliged to accept the employee's word, or a note that merely
states that the employee has a disability and requires such and such
accommodation. The employer is entitled to request and the employee is
obliged to provide sufficient reliable medical information to enable the
employer to satisfy its obligations under the collective agreement and
Human Rights Code; namely, to facilitate the safe return to or continued
work with any required accommodation to the point of undue hardship, and
to enable the union to comply with its accommodation obligations. The
employer, the employee, and the union all have an obligation to cooperate
in facilitating the employee's safe return to or continued work, and
implementing appropriate necessary accommodation to the point of undue
hardship in that respect. …
[153] That having been said, it ought to be very clear the medical information to which
the Employer and/or Oncidium in this instance, is initially entitled is limitations,
restrictions, and required accommodation regarding an employee’s own duties.
That is the focus of the inquiry of first instance with regard to accommodation of
the employee. The employee is entitled to return to his or her position, with or
without accommodation, providing such accommodation is possible and can be
provided short of undue hardship.
[154] The language of Article 8.8, dealing with “Medical Placements” is clear that the
search for alternative positions does not arise until it has been established
through a medical practitioner that the employee has a medical disability which
prevents the employee from returning to his or her original classification.
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[155] This brings me to the Consent portion of the Attending Physician Statement for
Accommodation. As pointed out by Counsel for the Employer, the Consent
states the information to be provided is only regarding the injury or illness which
is currently impacting on the employee’s ability to “work”. The difficulty with that
language is that it speaks to a general ability to “work”, as opposed to the ability
to perform the employee’s own duties.
[156] While this is consistent with the Employer’s position that it needs to know the
capacity of the employee to perform any of the numerous positions within the
organization, as stated above, information of that nature is premature. The initial
focus ought to be on the ability of the employee to perform the essential duties of
his or her position, with or without accommodation, and the Consent as currently
drafted is far too broad.
[157] That overly broad inquiry referenced in the Consent, carries over to page 2 of the
Attending Physician Statement, where the nature of the questions is consistent
with a general medical assessment, in that the “Statement of Impairment” again
refers to impacting on the ability to “work”. It continues on page 3, which asks for
the employee’s functional restrictions and limitations including Behavioural/
Cognitive limitations, with no qualification or limitation of any sort.
[158] While the Employer suggested this was similar to the form used in Revera Long
Term v ONA, there is a critical difference. That form limited the information
sought as follows: “If applicable to the current absence from work, please
complete below.”
[159] Without a focus on the current absence and the employee’s own job duties, I find
the Attending Physician Statement to be inappropriately broad, and inconsistent
with the arbitral jurisprudence that medical information sought ought not be more
intrusive than necessary. It seeks sensitive medical information such as details
regarding co-morbidities which goes beyond what Arbitrator Surdykowski found
was acceptable in Canada Bank Note Co., supra and behavioural/cognitive
limitations which ought not be made available in all but the clearest
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circumstances due to their potential to unreasonably stigmatize the employee.
Requesting such information in all instances suggests it will be given weight,
potentially giving rise to perceived violations of the Human Rights Code. As
Arbitrator Knopf noted in Central Care Corp. supra at paragraph 46:
46. At the time these grievances were filed, the Form contained a full
page of questions for the physicians to complete, ranging from employee's
ability to walk continuously to their capacity in regard to "memory", "goal
setting", "insight/awareness" and "responsibility/accountability". These
questions might be very relevant to some major injuries or illness such as
trauma to the brain, but they are obviously not relevant to situations where
an employee may be absent due to a finite condition such as pneumonia
or the like. The Employer recognized this in its submissions and does not
suggest that this information is required in every case.
[160] While I appreciate Arbitrator Knopf was dealing with Sick Leave and Weekly
Indemnity benefits rather than accommodation, as I have indicated earlier, while
more medical information may be appropriate during the accommodation
process, this does not entitle the employer to more information than is necessary
to determine whether an accommodation is available that will enable a disabled
employee to perform the essential duties of his or her position.
[161] An incremental approach which flows from the employee’s particular
circumstance and the information already available will most often provide an
appropriate balance of the employee’s right to medical privacy and the
employer’s right to know sufficient information to meet its needs and
responsibilities.
[162] The demands of the employee’s actual job duties, as well as the restrictions and
limitations of the illness or injury, and what, if any accommodation would enable
the employee to perform the essential duties of their own job duties should
provide guidance, at least in the initial stages.
[163] Only once a medical practitioner has determined the employee is unable to
return to his or her own position, is it open to the employer to move to the next
-49-
level of inquiry, to explore whether the employee can be accommodated through
a medical placement pursuant to Article 8.8.
[164] The specific question I have been asked to answer is whether it is a breach of
the Collective Agreement, the Human Rights Code, the Occupational Health and
Safety Act, the Personal Health Information Protection Act (if applicable), or any
other statute if the Employer requires employees to provide Oncidium with a
completed copy of the current Attending Physician Statement – Accommodation
in order to request and be provided with accommodations for disability?
[165] The applicable provision of the Occupational Health and Safety Act simply
prohibits disclosure beyond that to which the employee has consented, and as
the Attending Physician Statement – Accommodation requests such consent, no
violation is evident. Nor do I find the form breaches the Collective Agreement.
[166] The situation regarding the Human Rights Code is less clear. There is no
question that human rights considerations would caution against gathering
information regarding medical conditions, limitations, and restrictions which have
no relevance, and as indicated above is fraught with unnecessary risk for all
parties. However, no substantive submissions were made in that regard, in the
absence of which I am not prepared to go further.
[167] However, there is no question the Attending Physician Statement –
Accommodation, as currently drafted, constitutes an inquiry that is far too broad
and intrusive at the initial stage of the accommodation process, and ought not be
used in its current form.
[168] I might add that generally, if the Attending Physician Statement –
Accommodation were appropriately narrowed and focussed, I believe most of the
other concerns raised by the Union could be addressed through what now
appears to be the consensus regarding the consent/notice required prior to the
sharing of medical information.
-50-
[169] Specifically, I agree that requiring a consent for each contact with an employee’s
physician or each time information is to be shared is not necessary to preclude
the sharing of inappropriate information or to ensure ‘informed” consent. In that
regard I too accept Arbitrator Knopf’s comments in Central Care Corp., supra, to
that affect. However, as I noted above, having acknowledged the impracticality
of seeking a signed consent each time the employer or third party with whom it
has contracted is to contact a physician, and the imposition on an injured or
incapacitated employee to fulfill such a demand, Arbitrator Knopf added the
following critical comment at the end of paragraph 38:
However, this Employer must also respect the needs of employees to be
given notice each time that an immediate contact with the doctor has been
initiated.
[170] Further, while the applicable provisions of PHIPA to third parties such as
Oncidium, to whom a health information custodian discloses personal health
information, are limited, the provisions governing consent to the disclosure of
personal health information by a health information custodian are reflective of the
care to be taken with employee’s medical information. As stated by Arbitrator
Stout in Inergi LP at paragraph 64:
64 I am also of the view that the granting of a broad right to communicate
with the employee's physician is inappropriate in its current form. The
consent must comply with PHIPA. In this regard, it must be knowledgeable
and relate to personal health information reasonably necessary to meet
the purpose. PHIPA speaks to permitting conditional consent, notice and
withdrawal of consent. In my view, reading these sections together, a
consent may be drafted to permit communication with healthcare
professionals but only on notice to the employee and only in relation
to clarifying the information requested in the MAR Form. Any
subsequent communication with a healthcare provider, beyond
clarifying the information on the MAR Form, ought to be the subject
of a request for additional information at a later date together with
the specific consent of the employee. While it is possible that an
employee may consent to ongoing communication between their
healthcare provider and the sick plan administrator, I believe that it is
inappropriate and goes beyond what is reasonably necessary at the first
instance. [emphasis provided]
[171] Accordingly, no medical information ought to be shared with anyone, including
the employer, without the employee’s informed consent. This would require
-51-
sufficient notice and details regarding what Oncidium intends to share and with
whom, to enable the employee to consider whether it wishes to withdraw any
consent it has provided.
[172] Only on that basis would it be appropriate for an entity such as Oncidium to seek
an employee’s consent to contact the employee’s physician for clarification of
information provided in an appropriately focussed Attending Physician
Statement – which again is not what we have in this instance.
[173] The Union also takes issue with Oncidium contacting an employee’s physician in
all instances where accommodation is sought. However, the Consent for
Oncidium to contact the physician for clarification of the information provided in
the form does not mean that such a contact will be made in all instances. It may
be no clarification is required. Further, such consent would still be subject to the
employee being advised of the intent to contact the physician, and the
opportunity to withdraw such consent.
[174] However, as far back as Arbitrator Surdykowski’s decision in Hamilton Health
Sciences, supra, arbitral jurisprudence has recognized that as a general matter
there is nothing to prevent an employer from contracting out the information
gathering or assessment of medical information function, as the Employer has
done in this instance.
[175] This Employer has thousands of employees filling hundreds of different positions.
The managing of disability-related accommodation issues to facilitate returns to
work for such a large workforce is without question a gargantuan task and
contracting with a third party to manage its program is not unusual nor
problematic in and of itself.
[176] Further, the entity with which an employer has contracted out this function stands
in the shoes of the employer. While this means it has no greater right to
-52-
information than does the employer, it also means it is entitled to the same
information as would be the employer.
[177] There is no real dispute that an employer, or in this instance Oncidium, could
contact the employee’s physician to seek clarification of the information in the
Attending Physician Statement. In my view, this extends to any documentation
which serves that purpose as well, as long as it does not disclose a diagnosis or
other information that goes beyond clarification of the Attending Physician
Statement, in the first instance.
[178] Nor am I troubled by Oncidium providing all relevant medical information and
documentation to other independent service providers to assist in conducting
medical or functional examinations, evaluations or assessment in the course of
determining appropriate accommodation options. This too must be subject to the
employee’s right to appropriate notice and information to enable that employee to
withdraw his or her consent.
[179] Also, while I am not troubled by Oncidium sharing a functional case summary
with “the employer”, I agree that clarification ought to be provided regarding who
within the employer will receive that information, to ensure it is kept confidential
and utilized appropriately.
[180] While a “functional case summary” is not defined, if the medical information to
which Oncidium, and any of its independent service providers have access is
appropriately focussed and limited, then there ought not be a concern that this
“summary” is shared with the employer, as it would be limited to the information
the employer would be entitled to in any event, and it is on the employer’s behalf
that Oncidium has gathered the information. That is the purpose of having an
expert independent third party, with access to a range of medical experts to
perform the assessment. These assessments are often complex and require
expertise most employers would not have ready access to.
-53-
[181] Finally, I have no issue with the request that the Attending Physician Statement
be submitted to Oncidium within 10 days, as the cover letter suggests alternative
options would be available if this is not possible.
[182] What is clear from the jurisprudence is the need to at all times balance the
legitimate business interests of the employer and the privacy interests of the
employee. This requires careful consideration of the information that is
reasonably necessary to enable the employer to operate and plan for its
business, and meet its duty to accommodate the employee, while at the same
time respecting the privacy rights of the employee.
ISSUE # 3:
[183] The last issue to be decided at this time is:
Is it a breach of the Collective Agreement, the Human Rights Code,
the Occupational Health and Safety Act, the Personal Health
Information Protection Act (if applicable), or any other statute if the
Employer requires the employees to pay any charges for the
completion of the Attending Physician form?
[184] As noted above, the Attending Physician Statement indicates that any charges
for the completion of the form are the employee's responsibility.
The Union Position
[185] The Union points out the Attending Physician Statement is not the conventional
physicians’ “note” which can be provided relatively quickly. Rather, it is a
comprehensive document which will require employees to attend at the
physician’s office for an examination. Accordingly, pursuant to the second last
paragraph of Article B6.06 the Employer must bear the cost.
[186] In anticipation of the Employer’s reliance on the Decision of Vice-Chair Harris (as
he then was) between these two parties in Ontario (Greater Toronto Transit
Authority – GO Transit) and ATU, Local 1587, supra, the Union argued the
Functional Abilities Assessment Form (“FAAF”) at issue in that case, was
-54-
distinguishable from the more complex Attending Physician Statement in this
instance.
[187] In Ontario (Greater Toronto Transit Authority – GO Transit) and ATU, Local 1587,
after employees had provided the first certificate, under what is now Article B6.06
(i) or (v), the Employer required some employees to provide a “FAAF” completed
by their attending physician prior to being authorized to return to work.
[188] Vice-Chair Harris found that employees, rather than the Employer, were required
to pay for the FAAF.
[189] However, the Union pointed out that Vice-Chair Harris also stated at paragraph
12:
…
However, it should be borne in mind that the insistence of the employer
upon the completion of a specific template of FAAF may, on a case-by-
case basis, indeed "require", as a matter of fact, that the attending
physician complete an examination in order to fill out the form. The
resolution of that matter is not before me.
[190] The Union submitted the Attending Physician Statement was the type of
document Vice-Chair Harris contemplated would require the attending physician
to complete an examination. Accordingly the Union maintained the Employer
must pay for its completion.
[191] The Union also relied on the decision of Arbitrator G.E. Phillips in Thunder Bay
(City) and ATU, Local 966, supra. However, despite the Union’s assertions to
the contrary, I did not find the facts to be sufficiently parallel to those in this
instance to be of assistance in determining this matter.
The Employer Position
[192] As anticipated by the Union, the Employer submitted this issue has already been
decided by Vice-Chair Harris in GO Transit and ATU 1587, supra.
-55-
[193] The Employer pointed out Arbitrator Harris described the FAAF at issue in GO
Transit and ATU 1587, supra, as follows, and maintained this was similar to the
Attending Physician Statement:
This is a single-sided, check-box form that summarizes recommended
work restrictions.
[194] The Employer further submitted the issue of payment for certificates required for
absences in excess of 5 days was a matter for bargaining, and that I was without
jurisdiction to determine the issue, as it was a residual management right.
However, as I have found the “Attending Physician Statement - STD/Sick Leave”
ought not be used pursuant to Article B6.06 (v) in the first instance, in order to
request and be provided with sick leave and/or sick pay for absences of more
than 5 consecutive work days, I need not address this argument.
Analysis:
[195] The second last paragraph of Article B6.06, set out again for convenience,
states:
The employer may require that the employee submit to a medical
examination at the expense of the employer, where for reasons of
health, an employee is frequently absent or unable to perform his duties.
[196] The basis of Vice-Chair Harris’ decision in GO Transit and ATU 1587, supra was
a rejection of the Union’s submission that the FAAF is tantamount to a
requirement that the employee undergo an examination. Rather he
characterized the FAAF as an “addendum” to the medical certificate described in
what is now Article B6.06 (iii). Specifically, he stated at paragraph 12:
12. Here, the union submits that the FAAF is tantamount to a requirement
that the employee undergo an examination. I do not agree. That language
is directed towards a much higher order of medical intervention than the
request here for an FAAF from the attending physician. The FAAF being
requested is a required addendum to the medical certificate because the
medical certificate either does not provide a certification that the employee
is fit to resume regular duties or does not provide "satisfactory" information
relating to a return to full or modified duties. In the first case, absence less
than five days, the employer is only obliged to contribute to the cost of a
certificate that certifies a return to regular duties. It is nonetheless obliged
to consider accommodation options and any documentation to that effect
-56-
is at the expense of the employee. In the second case, the employee is
responsible for the cost of providing a certificate that is satisfactory with
respect to the return to work, either to full or modified duties. Accordingly,
the employer is not generally obliged to contribute to the cost of obtaining
a FAAF.
[197] Vice-Chair Harris suggested rather, that the collective agreement language relied
on by the Union, presumably the same as in this instance, was directed towards
a “much higher order of medical intervention” than that particular request for an
FAAF from the attending physician.
[198] Accordingly, Vice-Chair Harris found that the employer is not “generally” obliged
to contribute to the cost of obtaining a FAAF, and dismissed that particular
grievance.
[199] As pointed out by the Union, Vice-Chair Harris was clear he was not determining
the issue more broadly than in regard to the FAAF at issue before him, and a
document of a “much higher order” of medical intervention may result in another
conclusion.
[200] The question is then, when is that threshold of a “much higher order of medical
intervention” referred to Arbitrator Harris crossed.
[201] Article B6.06 is a comprehensive scheme in which the parties have agreed when
the Employer is and is not required to pay for medical documentation. If the
Employer requires a medical certificate pursuant to Article B6.06 (i), it pays
$10.00 if the conditions of that provision have been met.
[202] Further, the parties have agreed in the second last paragraph of Article B6.06,
that if the Employer requires the employee to submit to a medical examination,
where for reasons of health, an employee is frequently absent or unable to
perform his duties, then that examination will be at the Employer’s expense.
[203] As Vice-Chair Harris stated in paragraph 8, “[e]ffect must be given to the words
chosen by the parties to express their intention. It seems self-evident from the
-57-
language in the second last paragraph, that the threshold for Employer payment
for completion of the Attending Physician Statement is crossed when the nature
of the information sought requires the employee undergo a medical examination,
and the information is sought either because the employee is frequently absent
or unable to perform his duties. In this instance, the Attending Physician
Statement is being requested because of the latter i.e. the employee is unable to
perform his or her duties and is seeking accommodation to assist in that regard.
[204] Accordingly, consistent with dealing with each individual on the basis of their
particular circumstance, the result may be different.
[205] If a physician needs to perform a “medical examination” in order to complete any
document required by the employer with regard to a request for accommodation
that goes beyond the medical certificate contemplated in B6.06 iii, I find the
parties have agreed, in the second last paragraph of Article B6.06, this will be at
the Employer’s expense.
[206] Conversely, if the physician doesn’t need to conduct a new medical examination,
e.g. the issue is an environmental allergy for which the employee is already
being treated, then any cost should be minimal and is to be borne by the
employee.
[207] However, it is a violation of the second last paragraph of Article B6.06 of the
Collective Agreement for the Employer to require employees to pay for the
completion of the Attending Physician Statement, if the completion of the form
requires an examination of the employee, and the form is required because for
reasons of health, an employee is frequently absent or unable to perform his or
her duties.
-58-
DETERMINATION:
ISSUE #1 – ATTENDING PHYSICIAN STATEMENT - STD/SICK LEAVE OF MORE
THAN 5 CONSECUTIVE WORK DAYS:
[208] It is a breach of Article B6.06 of the Collective Agreement if the Employer
requires employees to provide Oncidium with a completed copy of the current
“Attending Physician Statement – STD/Sick Leave” in order to request and be
provided with sick leave and/or sick pay for absences of more than 5 consecutive
work days.
ISSUE #2 – ATTENDING PHYSICIAN STATEMENT - ACCOMMODATION
[209] The applicable provision of the Occupational Health and Safety Act simply
prohibit disclosure beyond that to which the employee has consented, and as the
Attending Physician Statement – Accommodation requests such consent, no
violation is evident. Nor do I find the form breaches the Collective Agreement or
the PHIPA.
[210] The situation regarding the Human Rights Code is less clear. To the degree the
“Attending Physician Statement – Accommodation” inquires regarding the
employee’s ability to “work” rather than ability to perform the essential duties of
their own position, the inquiry is too broad. This is also the case with regard to
the inquiry about the employee’s functional restrictions and limitations including
Behavioural/ Cognitive limitations, with no qualification or limitation of any sort.
[211] There is no question that human rights considerations would caution against
gathering information regarding medical conditions, limitations, and restrictions
which have no relevance, and as indicated above is fraught with unnecessary
risk for all parties.
[212] Without a focussed on the current absence and the employee’s own job duties, I
find the “Attending Physician Statement – Accommodation” to be inappropriately
-59-
broad, and inconsistent with the arbitral jurisprudence that medical information
sought ought not be more intrusive than necessary.
ISSUE #3 - PAYMENT
[213] At the Employer’s undisputed request, I have not directed any specific changes
to those aspects of the process or documents which I have found to be
problematic or in violation of the Collective Agreement at this time. However, I
remain seized to deal with the implementation of this award if need be.
Seized
[214] At the request of the parties, I also remain seized to deal with the balance of the
outstanding grievances, referenced in the Agreed Statement of Facts.
Dated at Toronto, Ontario this 23rd day of July, 2021.
“Tatiana Wacyk”
______________________
Tatiana Wacyk, Arbitrator
Attending Physician Statement - STD/ Sick Leave
For assistance please call 905-264-4674 Ext. ϭ4ϰ | Fax completed form to 1-866-879-3095
Version Date: ϮϮ-April-2021 Page 1 of 3
Please note that any charges for the completion of this form are the employee’s responsibility
Part A: TO BE COMPLETED BY THE EMPLOYEE (PATIENT)
Nothing in this form shall be interpreted as limiting the employer’s right to seek further information from employees, if required.
EMPLOYEE INFORMATION
First and Last Name: Employee ID Number:
Home Address:
Street & Apt #:
City:
Postal Code:
Job Title & Department:
Supervisor / Manager Name:
Primary Phone Number/ Secondary Phone Number Date of Birth:
Email Address: Employer:
AUTHORIZATION
I hereby authorize my Attending Physician and any Specialist identified in Part B below to release to ONCIDIUM the
information requested below related to the injury or illness which is currently impacting on my ability to work. I agree
and acknowledge that ONCIDIUM may consult with my Attending Physician and any Specialist identified in Part B for
clarification of the information provided in this form. I authorize my Attending Physician and any Specialist identified in
Part B to release to ONCIDIUM documentation which serves to clarify the information provided in this form.
I agree that any information provided to ONCIDIUM may be used by ONCIDIUM for the assessment of my claim
for Short Term Disability (“STD”) benefits aŶĚ/Žƌ Sick Leave to assess whether I am able to return to work
with or without accommodations and, if not, when I will be able to do so. If an independent provider is retained
by ONCIDIUM to conduct a medical or functional examination, evaluation or assessment for any of the
aforementioned purposes, I agree that ONCIDIUM may release to it all relevant medical information and
documentation in ONCIDIUM’s possession, including the medical information requested below.
I permit and authorize ONCIDIUM to provide my Employer with a functional case summary which may include
information related to medical restrictions and limitations, and modifications necessary for me to return to work.
I further agree that ONCIDIUM may provide a copy of any medical report(s) generated by it or its agents to my
Attending Physician and any Specialist identified in Part B.
/ Śave ƌeaĚ ƚŚe aďŽve aƵƚŚŽƌinjaƚiŽŶ aŶĚ edžƉƌeƐƐ ŵLJ cŽŶƐeŶƚ ďLJ aĨĨidžiŶŐ ŵLJ ƐiŐŶaƚƵƌe ďeůŽǁ͘ / aŐƌee ƚŚaƚ
ƚŚiƐ cŽŶƐeŶƚ ƐŚaůů cŽŶƚiŶƵe ƚŽ Śave eĨĨecƚ ĨŽƌ ƚŚe ĚƵƌaƚiŽŶ ŽĨ ŵLJ cƵƌƌeŶƚ STD cůaiŵ aŶĚ/Žƌ Sick Leave͕ ƌeƚƵƌŶ ƚŽ
ǁŽƌk eĨĨŽƌƚƐ͕ aŶĚ/Žƌ ƉeƌiŽĚ ŽĨ accŽŵŵŽĚaƚiŽŶ͕ ƵŶůeƐƐ ƚŚiƐ cŽŶƐeŶƚ iƐ ƌevŽkeĚ ďLJ ŵe iŶ ǁƌiƚiŶŐ͘ / aŐƌee
ƚŚaƚ a ƉŚŽƚŽcŽƉLJ Žƌ eůecƚƌŽŶic veƌƐiŽŶ ŽĨ ƚŚiƐ aƵƚŚŽƌinjaƚiŽŶ iƐ aƐ vaůiĚ aƐ ƚŚe ŽƌiŐiŶaů͘
Signature Date (MM/DD/YYYY)
Appendix A - Sick Leave STD
Attending Physician Statement - STD/Sick Leave
For assistance please call 905-264-4674 Ext. 14ϰ | Fax completed form to 1-866-879-3095
Version Date: ϮϮ-April-2021 Page 2 of 3
PART B: TO BE COMPLETED BY HEALTH CARE PRACTITIONER
Please provide the following information to support this Employee’s current medical absence, and to assist with an early and safe
return to work. Please ensure the form is completed in full (with the Employee’s name at the top of each page), as any missing
information may result in delay or ƌeƐƵůƚ iŶ a non-support of the case.
STATEMENT OF IMPAIRMENT
Nature of illness or injury currently impacting on ability to work (do not provide diagnosis):
Date illness/injury began or
symptoms first appeared:
_____ / _____ / _____
(MM/DD/YY)
Date employee became
incapable of working full
duties:
_____ / _____ / _____
(MM/DD/YY)
Date you first assessed
employee for current absence:
_____ / _____ / _____
(MM/DD/YY)
Date of next assessment /
appointment concerning
current absence:
_____ / _____ / _____
(MM/DD/YY)
DISABILITY INFORMATION
Current absence is related to: ☐Illness ☐ Injury
To the best of my knowledge, this employee is totally disabled from: _____ / _____ / _____ to _____ / _____ / _____
Is the Employee’s current condition the result of a work-related injury or illness: ☐ Yes ☐ No
If yes, has a Form 8 been completed: ☐ Yes ☐ No
Is the Employee undergoing treatment for the injury/illness referenced above: ☐ Yes ☐ No
Is the Employee following the treatment plan?: Ƞ Yes Ƞ No
Date: (MM/DD/YY) Has the Employee been referred to a Specialist: Ƞ Yes Ƞ No If yes, Name:
Are there any co-morbid conditions or complications impacting recovery? ☐ Yes ☐ No
If yes, please ĚeƐcƌiďe ƚŚe iŵƉacƚ (do not provide diagnosis):
Are there any workplace barriers unrelated to illness or injury affecting the Employee’s return to work: ☐ Yes ☐ No
If yes, please explain:
WůeaƐe ůiƐƚ aŶLJ ŽƚŚeƌ ĨacƚŽƌƐ ĚeůaLJiŶŐ ƚŚe ƌecŽveƌLJ ƉƌŽceƐƐ͗
Have any medications been prescribed for the injury/illness that could affect the Employee’s ability to perform safety sensitive
work: ☐ Yes ☐ No
If yes, please explain (eg. medication may cause drowsiness) and provide the expected duration:
Is any treatment in place for the injury/illness that could affect the Employee’s ability to consistently attend at work: ☐ Yes Ƞ EŽ
Are the Employee’s medical restrictions and limitations permanent: ☐ Yes ☐ No
If no, what is their estimated duration: ☐ф1 month ☐1 to 2 months ☐3 to 5 months ☐х6 months
How is the performance of the Employee’s job impacted by their medical restrictions and limitations?
Please describe any accommodations/modifications proposed:
/Ĩ LJeƐ͕ ƉůeaƐe edžƉůaiŶ ;eŐ͘ ƚƌeaƚŵeŶƚ ŵaLJ ƌeƋƵiƌe iŶƚeƌŵiƚƚeŶƚ aďƐeŶceƐ ĨƌŽŵ ǁŽƌk͕ eƚc͘Ϳ aŶĚ ƉƌŽviĚe ƚŚe edžƉecƚeĚ ĚƵƌaƚiŽŶ͗
Attending Physician Statement – STD/Sick Leave
For assistance please call 905-264-4674 Ext. 144 | Fax completed form to 1-866-879-3095
Version Date: 22-April-2021 Page 3 of 3
PROGNOSIS / CAPABILITIES
First date of absence: (MM/DD/YY)
Estimated date of return to work: (MM/DD/YY)
Employee is expected to return to: ☐ Regular Duties/Hours OR ☐ Modified Duties/Hours
Employee’s current functional restrictions and limitations are:
A. SITTING / STANDING /
WALKING (check all that apply)
OCCASIONAL
(0-33%)
FREQUENT
(34-66%)
NO
LIMITATIONS COMMENTS
Sitting / Standing ☐ ☐ ☐ Distance, Duration, Height/Frequency
Body Part Affected Walking ☐ ☐ ☐
Climbing ☐ ☐ ☐
Bending/Twisting ☐ ☐ ☐
B. LIFTING FLOOR TO WAIST (check all that apply)
Sedentary (up to 4.5 kgs) ☐ ☐ ☐
Light (4.6 – 9.0 kgs) ☐ ☐ ☐
Medium (9.1 – 22 kgs) ☐ ☐ ☐
C.LIFTING WAIST TO SHOULDER (check all that apply)
Sedentary (up to 4.5 kgs) ☐ ☐ ☐
Light (4.6 – 9.0 kgs) ☐ ☐ ☐
Medium (9.1 – 22 kgs) ☐ ☐ ☐
D. BEHAVIOURAL / COGNITIVE LIMITATIONS (check all that apply)COMMENTS
☐Verbal communication ☐Ability to work cooperatively
☐Tolerance of emotional situation ☐Ability to concentrate/attend to details
☐Able to follow and provide
instruction ☐Tolerance of confrontational situation
☐Ability for self-supervision ☐Responsibility and accountability
☐Ability to supervise others ☐Reading literacy
☐Ability to tolerate time pressures ☐Writing literacy
☐Performance of multiple tasks ☐Numerical skills
☐Tolerance of distracting stimuli ☐Computer literacy
E. TRAVEL Ability to drive: ☐ Yes ☐ No Ability to use public transit: ☐ Yes ☐ No
ATTENDING PHYSICIAN INFORMATION
Name:
Address:
(stamp)
Signature: Number Street
City Province Postal Code
Phone: ( ) Fax: ( )
Date: _____ / _____ / _____(MM/DD/YY) Email:
Once completed, please return all 3 pages by fax to 1-866-879-3095
Attending Physician Statement - Accommodation
For assistance please call 905-264-4674 Ext. 144 | Fax completed form to 1-866-879-3095
Version Date: 22-April-2021 Page 1 of 3
Please note that any charges for the completion of this form are the employee’s responsibility
Part A: TO BE COMPLETED BY THE EMPLOYEE (PATIENT)
Nothing in this form shall be interpreted as limiting the employer’s right to seek further information from employees, if required.
EMPLOYEE INFORMATION
First and Last Name: Employee ID Number:
Home Address:
Street & Apt #:
City:
Postal Code:
Job Title & Department:
Supervisor / Manager Name:
Primary Phone Number/ Secondary Phone Number Date of Birth:
Email Address: Employer:
AUTHORIZATION
I hereby authorize my Attending Physician and any Specialist identified in Part B below, to release to ONCIDIUM the
information requested below related to the injury or illness which is currently impacting on my ability to work. I agree
and acknowledge that ONCIDIUM may consult with my Attending Physician and any Specialist identified in Part B for
clarification of the information provided in this form. I authorize my Attending Physician and any Specialist identified in
Part B to release to ONCIDIUM documentation which serves to clarify the information provided in this form.
I agree that any information provided to ONCIDIUM may be used by ONCIDIUM to determine whether I am able to
work, with or without accommodations and, if not, when I will be able to do so. If an independent provider is
retained by ONCIDIUM to conduct a medical or functional examination, evaluation or assessment for any of the
aforementioned purposes, I agree that ONCIDIUM may release to it all relevant medical information and
documentation in ONCIDIUM’s possession, including the medical information requested below.
I permit and authorize ONCIDIUM to provide my Employer with a functional case summary which may include
information related to medical restrictions and limitations, and modifications necessary for me to continue to
work. I further agree that ONCIDIUM may provide a copy of any medical report(s) generated by it or its agents to
my Attending Physician and any Specialist identified in Part B.
I have read the above authorization and express my consent by affixing my signature below. I agree that this
consent shall continue to have effect for the duration of Oncidium’s assessment of my capacity to work, and any
period of accommodation, unless this consent is revoked by me in writing. I agree that a photocopy or electronic
version of this authorization is as valid as the original.
Signature Date (MM/DD/YYYY)
Appendix B - Accommodation
Attending Physician Statement - Accommodation
For assistance please call 905-264-4674 Ext. 144 | Fax completed form to 1-866-879-3095
Version Date: 22-April-2021 Page 2 of 3
PART B: TO BE COMPLETED BY HEALTH CARE PRACTITIONER
Please provide the following information to support this Employee’s accommodation. Please ensure the form is completed in full
(with the Employee’s name at the top of each page), as any missing information may result in delay or non-support of the case.
STATEMENT OF IMPAIRMENT
Nature of illness or injury currently impacting on ability to work (do not provide diagnosis):
Date illness/injury began or
symptoms first appeared:
_____ / _____ / _____
(MM/DD/YY)
Date employee became
incapable of working full
duties:
_____ / _____ / _____
(MM/DD/YY)
Date you first assessed
employee for current reduced
capacity to work:
_____ / _____ / _____
(MM/DD/YY)
Date of next assessment /
appointment concerning
current reduced capacity to
work:
_____ / _____ / _____
(MM/DD/YY)
DISABILITY INFORMATION
Current reduced capacity to work is related to: ☐Illness ☐ Injury
To the best of my knowledge, this employee is totally disabled from: _____ / _____ / _____ to _____ / _____ / _____
Is the Employee’s current condition the result of a work-related injury or illness: ☐ Yes ☐ No
If yes, has a Form 8 been completed: ☐ Yes ☐ No
Is the Employee undergoing treatment for the injury/illness referenced above: ☐ Yes ☐ No
Is the Employee following the treatment plan?: ☐ Yes ☐ No
Has the Employee been referred to a Specialist: ☐ Yes ☐ No If yes, Name: Date: (MM/DD/YY)
Have any medications been prescribed for the injury/illness that could affect the Employee’s ability to perform safety sensitive
work: ☐ Yes ☐ No
If yes, please explain (eg. medication may cause drowsiness) and provide the expected duration:
Is any treatment in place for the injury/illness that could affect the Employee’s ability to consistently attend at work: ☐ Yes ☐ No
If yes, please explain (eg. treatment may require intermittent absences from work, etc.) and provide the expected duration:
Are there any co-morbid conditions or complications impacting recovery? ☐ Yes ☐ No
If yes, please explain (do not provide diagnosis):
Are there any workplace barriers unrelated to injury or illness affecting the Employee’s ability to work full duties: ☐ Yes ☐ No
If yes, please describe the impact:
Please list any other factors delaying the recovery process:
Are the Employee’s medical restrictions and limitations permanent: ☐ Yes ☐ No
If no, what is their estimated duration: ☐ <1 month ☐1 to 2 months ☐3 to 5 months ☐>6 months
How is the performance of the Employee’s job impacted by their medical restrictions and limitations?
Please describe any accommodations/modifications proposed:
Attending Physician Statement - Accommodation
For assistance please call 905-264-4674 Ext. 144 | Fax completed form to 1-866-879-3095
Version Date: 22-April-2021 Page 3 of 3
PROGNOSIS / CAPABILITIES
Estimated date of return to full duties (if applicable): (MM/DD/YY)
Employee’s functional restrictions and limitations are:
A. SITTING / STANDING /
WALKING (check all that apply)
OCCASIONAL
(0-33%)
FREQUENT
(34-66%)
NO
LIMITATIONS COMMENTS
Sitting / Standing ☐ ☐ ☐ Distance, Duration, Height/Frequency
Body Part Affected
Walking ☐ ☐ ☐
Climbing ☐ ☐ ☐
Bending/Twisting ☐ ☐ ☐
B. LIFTING FLOOR TO WAIST (check all that apply)
Sedentary (up to 4.5 kgs) ☐ ☐ ☐
Light (4.6 – 9.0 kgs) ☐ ☐ ☐
Medium (9.1 – 22 kgs) ☐ ☐ ☐
C. LIFTING WAIST TO SHOULDER (check all that apply)
Sedentary (up to 4.5 kgs) ☐ ☐ ☐
Light (4.6 – 9.0 kgs) ☐ ☐ ☐
Medium (9.1 – 22 kgs) ☐ ☐ ☐
D. BEHAVIOURAL / COGNITIVE LIMITATIONS (check all that apply) COMMENTS
☐ Verbal communication ☐ Ability to work cooperatively
☐ Tolerance of emotional situation ☐ Ability to concentrate/attend to details
☐ Able to follow and provide
instruction ☐ Tolerance of confrontational situation
☐ Ability for self-supervision ☐ Responsibility and accountability
☐ Ability to supervise others ☐ Reading literacy
☐ Ability to tolerate time pressures ☐ Writing literacy
☐ Performance of multiple tasks ☐ Numerical skills
☐ Tolerance of distracting stimuli ☐ Computer literacy
E. TRAVEL Ability to drive: ☐ Yes ☐ No Ability to use public transit: ☐ Yes ☐ No
ATTENDING PHYSICIAN INFORMATION
Name:
Address:
(stamp)
Signature: Number Street
City Province Postal Code
Phone: ( ) Fax: ( )
Date: _____ / _____ / _____(MM/DD/YY) Email:
Once completed, please return all 3 pages by fax to 1-866-879-3095