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HomeMy WebLinkAbout2020-2967.Kopec.22-05-12 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2020-2967; 2021-1207; 2021-1629; 2021-2487 UNION# 2021-0212-0002; 2021-0212-0003; 2021-0212-0004; 2021-0212-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Kopec) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Dale Hewat Arbitrator FOR THE UNION Mae J. Nam Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING DATE May 5, 2022 - 2 - Decision [1] This matter involves four consolidated grievances, filed between February 4 and September 23, 2021 pertaining to the Grievor’s requests for accommodation relating to her inability, due to a medical condition, to wear a face mask while working in her position as a Court and Client Representative at the St. Catherine’s Ontario Courthouse. This Decision deals with the Employer’s request for the Grievor’s medical records which has been opposed by the Union. [2] Two grievances dated February 4, 2021 and July 7, 2021 allege that the Employer violated a number sections of the Collective Agreement including but not limited to Articles 2, 3, 9 Health and Safety, the Ontario Human Rights Code, the Occupational Health and Safety Act and the Respectful Workplace Policy and any other legislation and policies by behaving in an unfair and arbitrary manner related to failing to ensure a workplace free from discrimination, harassment and bullying. The Grievor also claimed that the Employer’s behaviour, including a differential set of expectations and treatment, caused her undue stress and mental anguish which was injurious to her dignity. The Grievor sought that the Employer allow her to wear a face shield in the workplace as an acceptable accommodation, be free from reprisal, and sought other remedies pursuant to the Human Rights Code. A third grievance, dated August 4, 2021 grieves that the Employer unjustly disciplined the Grievor by imposing a one-day suspension because the Grievor attended work without wearing a face mask on July 6, 2021 contrary to her supervisor’s instructions and continued to fail to cooperate in providing further medical information in support of her accommodation. The fourth grievance dated September 23, 2021 arose after the Employer placed the Grievor on an unpaid leave of absence because of the Grievor’s continued refusal to provide medical documentation to support her accommodation request. While this last grievance alleges, among other things, that the Employer failed to accommodate the Grievor, the Union also takes the position that placing the Grievor on an unpaid leave of absence was tantamount to unjust termination of employment. [3] As part of case management of these grievances, it was agreed that the Employer would call its evidence first on the suspension grievance and the grievance involving the unpaid leave of absence, with a broad right of reply. The Union would then call its evidence on the failure to accommodate and other allegations raised in the grievances. Overview [4] During the COVID pandemic, Ontario Courthouses remained open because they were designated as an essential service. Courthouse staff were subject to the Ministry’s Personal Protective Equipment (PPE) and Critical Supply Usage Policy, as well as directions from management regarding COVID-19 Health and Safety protocols and procedures. Courthouse staff were required at all times to wear full PPE which included a face mask and face shield and were required to practice other safe social distancing measures. On January 4, 2021 the Grievor advised - 3 - the Employer that she was unable to wear a face mask for medical reasons. The Employer initially placed the Grievor on an interim accommodation plan pending receipt of further information from her physician to support her accommodation request. The Grievor was assigned on-line duties and was not assigned client facing work. Other terms of the accommodation plan generally included having the Grievor work in a separate jury room with washroom access and having the Grievor ensure that she limit her movement, practice social distancing in common areas and to refrain from using the lunch room when occupied. [5] Without getting into the details of all events and email exchanges, which will be introduced in the case on the merits, the Grievor ultimately provided 2 medical notes to the Employer, despite the fact that she initially advised that her doctor refused to provide a medical note to confirm that she could not wear a face mask at work. She also advised that her doctor would not complete the medical questionnaire that the Employer had requested. The Grievor claims that she provided the medical notes despite the fact that she was not required to provide them pursuant to the medical exemption provisions related to face masks or coverings in Regulation O.Reg.364/20. She also maintains that she had provided the Employer with all necessary medical information to support her accommodation request. As a result, she continued to state that she was within her rights not to produce more medical information and that the Employer’s repeated requests were discriminatory and in violation of the Collective Agreement and other Provincial policies. [6] The first medical note was provided on March 4, 2021 in which it was indicated that due to medical reasons, the Grievor had difficulty wearing a face mask and asked the Employer to take this into consideration in accommodating her. The second medical note dated July 5, 2021 stated that the Grievor was not able to wear a face mask for medical reasons. Employer’s Request for Production [7] The Employer is seeking an order that the Union provide Dr. Davies’ clinical notes, tests, and information he gathered from the Grievor that formed the basis for his recommendations and conclusions in the medical notes of March 4, 2021 and July 5, 2021. The Employer also asks to reserve its right to additional medical documentation in the event that the Union discloses other medical information that it intends to rely on in this case. [8] The Employer argues that the request for medical information is limited in scope and that the information is arguably relevant to all of the grievances in this case. The Employer emphasizes that the overriding principle that production of medical documentation is routinely ordered by arbitrators when medical status is at issue because of the nature of the grievance. In this case, because the Grievor has requested a medical accommodation exemption from wearing a face mask, the Employer states that it is entitled to examine the underlying medical information in order to examine how the physician reached his medical opinion. - 4 - [9] In addition, the Employer notes that the March 4 and July 5, 2021 medical notes were inconsistent and that it should be entitled to understand what information formed the basis for the July 5, 2021 note that stated that the Grievor, due to medical reasons, could not wear a face mask at work compared to the March 4, 2021 note that stated that the Grievor had difficulty with wearing a face mask, due to medical reasons. The Employer maintains that in this case it had an ongoing concern about the sufficiency of the notes and had no information about prognosis or whether the Grievor was undergoing medical treatment which would have informed the Employer in its decision making related to all four grievances. [10] The Employer relies on the following decisions in support of its position: Dufferin Concrete and TC Local 230 (Storey) (2015), 264 L.A.C.(4th) 1 (Luborsky); Peel District School Board v Ontario Secondary School Teachers’ Federation, District 19, 2017 CanLII 96315 (ON LA) Wicik v. Sunnybrook Research Institute, 2020 HRTO 158 (McKendy); OPSEU (Horning) and Ministry of the Solicitor General, GSB No 2016-2754 (Petryshen); AMAPCEO (Szewczyk) and Ministry of the Environment, January 20, 2014, GSB No 2013-0723 (Herlich). Union’s Response on Production [11] The Union urges me to deny the Employer’s request for production arguing that the Grievor’s privacy outweighs any entitlement to disclosure, that the medical file is not arguably relevant to the disciplinary aspects of the case, or alternatively that production of medical information is premature at this stage of the hearing. In the event that I allow the Employer’s motion for production, the Union asks that I place conditions on who has access to the medical information and restrictions on its use and confidentiality similar to those imposed in OPSEU v. Ministry of Community Safety and Correctional Services GSB No. 2016-1915 (Gee). [12] The Union claims that in deciding whether to order production, I need to also consider the issues in the order that are before me, namely; a) was the Employer justified in issuing a 1-day suspension? b) was the Employer justified in placing the Grievor on an unpaid leave of absence? c) did the Employer fail to accommodate the Grievor? and d) what remedies is the Grievor entitled to should I uphold her grievances? While acknowledging that some medical documentation could be introduced as part of the Union’s evidence on remedy, Counsel states the current medical information sought by the Employer is not relevant to the decisions to suspend the Grievor and subsequently place her on an unpaid leave of absence. The Union maintains that the Grievor did provide medical notes which formed the basis of the Employer’s disciplinary decisions and that the Employer should not need any further medical information. Additionally, Counsel asserts that even on the accommodation grievances, the medical notes on their face provide a nexus between a disability and the need for accommodation, and that ordering the medical documentation sought by the Employer constitutes an unnecessary invasion of her privacy, including a possible disclosure of diagnosis, which is also prejudicial to the trust between her and her physician. - 5 - [13] The Union also asks me to consider the Employer’s request within the context that these grievances relate to the Ontario Government’s mask mandate set out in Regulation O.Reg.364/20 which provided for exemptions in subsection (5) that the mask mandate does not apply to a person (h) with a medical condition that inhibits their ability to wear a mask or face covering or (l) is being accommodated in accordance with the Human Rights Code. Furthermore, subsection (8) provides that it is not necessary for a person to present evidence that they are entitled to the exceptions set out in subsection (5). In light of this Regulation, the Union notes that the Grievor fell under an exempted group and was not required to provide evidence to explain why she could not wear a mask. Therefore, ordering documents now from her medical file is inconsistent with the Regulation and, production of medical documents places an additional burden upon the medical community. [14] In support of its position, the Union relies on two cases, both denying production requests for medical evidence following a termination of employment. In West Park Hospital v Ontario Nurses ‘Association, 1993 CanLII 16806(ON LA), an Employer’s request for a medical file was denied where the Employer had discharged a Nurse for competency. In that case, prior to her termination, the grievor had provided a certificate of competency to the Employer but no other medical information. The Board of Arbitration found that there was not a clear nexus between the information being requested and the positions in dispute. In that regard, the Board found that the discharge itself was not based on health-related problems compared to other situations where the discharge and medical information are inextricably connected (p.16) and also questioned even whether the medical disclosure request was arguably relevant at the early stage of proceedings. In addition, the Board was not satisfied that there was a reason to undermine the confidentiality of the doctor-patient relationship (p.17). The Union asks that I draw an analogy in the instant case, especially at this juncture of the hearing, that the decisions to discipline the Grievor were based solely on the medical notes that she provided. In that regard Counsel submits ordering further production is unnecessary and would be prejudicial to the Grievor’s privacy rights. [15] In Peel Regional Paramedic Services of the Regional Municipality of Peel vs OPSEU Local 277 (Reed) 2018 CanLII 44272(ONLA), the Employer sought all medical documentation in a case involving termination of employment due to frustration of contract following a 2-year medical leave. In denying the Employer’s production request, the Arbitrator found, (p.5) that the primary issue in the case was whether the Employer violated the Collective Agreement and the Human Rights Code when it terminated the Grievor’s employment for purported frustration of contract. While the Grievor’s medical condition was central to the dispute and relevant to the proceeding, the Employer was required to justify its decision to terminate based on the information it had when it made the decision. For that reason, the Arbitrator concluded that additional information regarding the Grievor’s medical condition at the time of termination or post-termination was not relevant at that stage of the proceeding. However, the Arbitrator noted that additional medical - 6 - information may become relevant and producible in the event that a Code violation is found in terms of assessing remedy. Decision [16] Having considered the Parties arguments and the caselaw presented, I am allowing the Employer’s motion for the production of medical documentation subject to conditions with respect to access and confidentiality noted below. [17] Fundamentally the central issues in the case concern the Grievor’s request for a medical accommodation and the fallout from that request. While I appreciate that at this stage of the proceeding, the Employer’s evidence on the one-day suspension and the unpaid leave of absence is being adduced first, I do not agree that the case can be divided, as the Union suggests, in a way that limits sharing arguably relevant evidence, at this stage of the proceeding, that is central to the dispute. The Employer’s decision to suspend and place the Grievor on an unpaid leave of absence was linked, in large part, to the sufficiency of the two medical notes provided and the Employer’s repeated requests for medical information to support the accommodation request. Unlike the decision in Peel, this case deals with an ongoing disability and request of further medical information in addition to a disciplinary suspension and unpaid leave of absence. Given the consolidation of the grievances before me, this case involves more than assessing the onus of proof and what is arguably relevant evidence in a disciplinary proceeding. This case is also distinguishable from the decision in West Park Hospital because here there is a clear nexus between the information being requested and the positions of the parties in the dispute. [18] While I also acknowledge the sensitivity of a patient’s medical records, I am satisfied that the Employer’s request is limited in scope because it relates only to the medical opinion underlying the 2 medical notes submitted. The Employer’s request in this case is different than a production request that seeks a patient’s full medical file and record. In addition, I am not satisfied that an order for the medical production request is inconsistent with Regulation O.Reg.364/20 as the Grievor did provide medical notes which may be subject to the Employers’ right to make further inquiries as part of the accommodation process. However, this conclusion does not limit the right of the Union to make further arguments, on the merits, regarding its view of the impact of O.Reg.364/20 on the accommodation process including the rights and obligations of the parties. [19] Looking at this case in its entirety, I adopt the analysis for ordering production in Dufferin Concrete, also applied in the other arbitration cases submitted by the Employer. In Dufferin, an employee had been away from work due to injuries. To assess whether the employee was ready to return to work, the employer requested medical information. While the employee willingly submitted a series of medical notes/opinions from his physician, he would not provide his complete medical records. The employer sought a production order for the complete record pertaining to the employee's injuries that had kept him away from work. Starting at - 7 - paragraphs 24, Arbitrator Luborsky sets out the applicable principles: First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a "fishing expedition". Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the Board must be satisfied that disclosure will not cause undue prejudice. Equally applicable in this case are the Arbitrator’s comments at paragraph 32: “that once the Grievor and/or Union has placed medical notes before the Employer (and ultimately the arbitrator), the Union has opened the door to the proper admission of all of the documentation that the author of the medical reports relied upon in arriving at the conclusions stated in those reports, and any other documentation in the Grievor's medical file arguably related thereto. This may include information evidencing the physician's knowledge of the physical demands of the Grievor's job, records of meetings with the Grievor (including what the Grievor is reported to have said to his physician on the matter), clinical notes of physical examinations, testing and other assessments the physician may have conducted in coming to the specific conclusions or recommendations reflected by the medial notes presented to the Employer.” [20] Counsel for the Employer has asked that he be permitted to share the medical documentation produced with the ERA, two instructing clients and the Disability Accommodation Specialist. The Union maintains that the Grievor’s medical documents contain personal information that should not be disclosed unless absolutely necessary. Having regard to balancing the Grievor’s right to privacy against what is arguably relevant in what the Employer needs to know in order to prepare its case, I have determined that the Employer’s request of how it intends to share the medical information is too broad, at this stage. Similar to the reasoning in OPSEU v. Ministry of Community Safety and Correctional Services GSB No. 2016-1915 (Gee), I conclude that disclosure be restricted to Counsel and one instructing advisor. However, I will also allow Employer Counsel, if necessary for case preparation, to share medical disclosure with the Disability Accommodation Specialist assigned to the Grievor’s accommodation file. I also adopt the same ruling noted by Arbitrator Gee, at paragraph 6, that “Should a need arise for Counsel to disclose the documents to a potential witness, for the purposes of getting instructions, or in order to get an expert medical opinion, the Grievor’s consent can be requested and, if denied, an order can be sought from the Board.” [21] Accordingly, I hereby order that, no later than 45 days before the next hearing date, the Union produce Dr. Davies’ clinical notes, tests, and information he gathered from the Grievor that formed the basis for his recommendations and conclusions in the medical notes of March 4, 2021 and July 5, 2021. The clinical notes and other medical information disclosed to the Employer in this proceeding shall be subject to the following conditions: - 8 - i. The documents or material will only be released to Employer Counsel, one instructing advisor and the Disability Accommodation Specialist assigned to the Grievor’s file. ii. The documents or material produced must be maintained as confidential. iii. The documents or material produced must not be disclosed to any person or party not a participant in these proceedings. iv. The documents or material produced can only be used for purposes relating to this proceeding and not for any other purpose or proceeding. v. Documents or material produced shall only be copied for purposes relating to this proceeding and any medical documentation produced and, in the Employer’s possession, shall be returned to the Union or destroyed at the conclusion of the proceeding. Dated at Toronto, Ontario this 12th day of May 2022. “Dale Hewat” _________________ Dale Hewat, Arbitrator