The URL can be used to link to this page

Home My WebLink About2019-0197.Policy.21-07-23 Decision (2)Crown 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 -1- 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. 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 -2- 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: (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? -3- (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. 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 -4- 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. (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; -5- (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 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. -6- [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). 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). -7- 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), [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 -8- 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 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 -9- 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 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. -10- 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. [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, -11- 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. … 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 -12- consents that purport to give an employer prospective permission, particularly where the consent purports to permit the employer 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.; – When an employer unilaterally introduces a rule, it must not be inconsistent with the collective agreement (Lumber & Sawmill Workers' Union, Local 2537 v. KVP -13- 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,). [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: -14- [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, 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. -15- [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 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. -16- [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] 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 -17- 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 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. -18- [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. [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). -19- [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). [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. -20- [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. [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 -21- [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 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 employee’s absence in the first instance, as being between that employee and that employee’s Supervisor. -22- [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 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 -23- 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.) [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 -24- 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 … . [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. -25- [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 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 -26- 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: 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. -27- [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 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 -28- 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. 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. -29- 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. [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: -30- 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? 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. -31- [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. [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 -32- 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. [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 -33- 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. [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 -34- 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". [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). -35- [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 pursuant to the Collective Agreement, as well as the Employer’s statutory and -36- 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. [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. -37- [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. [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 -38- 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 “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 -39- 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. [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. -40- [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. [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 -41- 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. [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. … -42- [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. [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. -43- [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 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. -44- [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 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. -45- [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. [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 -46- 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 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. -47- [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 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. -48- [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 distinguishable from the more complex Attending Physician Statement in this instance. -49- [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. [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. -50- [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 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. -51- [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 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. -52- [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 for reasons of health, or because an employee is frequently absent or unable to perform his or her duties. 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. -53- [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 broad, and inconsistent with the arbitral jurisprudence that medical information sought ought not be more intrusive than necessary. ISSUE #3 – PAYMENT [213] 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 for reasons of health, or because an employee is frequently absent or unable to perform his or her duties. Seized [214] 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. -54- [215] 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 -55- Appendix A - Sick Leave STD Attending Physician Statement - STD/ Sick Leave 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 and/or 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. 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 my current STD claim and/or Sick Leave, return to work efforts, and/or 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) For assistance please call 905-264-4674 Ext. 144 | Fax completed form to 1-866-879-3095 -56- Attending Physician Statement - STD/Sick Leave 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 result in 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 Has the Employee been referred to a Specialist: Ƞ Yes Ƞ 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 Ƞ 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 describe the impact (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: 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: For assistance please call 905-264-4674 Ext. 144 | Fax completed form to 1-866-879-3095 Version Date: 22-April- Page 1 of -1- Attending Physician Statement – STD/Sick Leave 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: Signature: Number Street (stamp) City Province Postal Code Phone: ( ) Fax: ( ) Date: / / (MM/DD/YY) Email: For assistance please call 905-264-4674 Ext. 144 | Fax completed form to 1-866-879-3095 Version Date: 22-April- Page 2 of -2- Once completed, please return all 3 pages by fax to 1-866-879- Appendix B - Accommodation Attending Physician Statement - Accommodation 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) For assistance please call 905-264-4674 Ext. 144 | Fax completed form to 1-866-879-3095 Attending Physician Statement - For assistance please call 905-264-4674 Ext. 144 | Fax completed form to 1-866- Version Date: 22-April- Page 3 of 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 - For assistance please call 905-264-4674 Ext. 144 | Fax completed form to 1-866- Version Date: 22-April- Page 4 of 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: Signature: Number Street (stamp) 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