HomeMy WebLinkAboutWinton 11-01-27
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IN THE MATTER OF AN ARBITRATION
(Under the Labour Relations Act, 1995)
BETWEEN:
PROVIDENCE CARE, MENTAL HEALTH SERVICES
(the "Employer")
-AND-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
AND ITS LOCAL 431
(the "Union")
AND IN THE MATTER OF an arbitration of the sick leave benefits grievance of Mark
Winton under the collective agreement between the parties
BEFORE: G. T. SURDYKOWSKI - Sole Arbitrator
APPEARANCES:
For the Employer: Ron Pearson, Director of Employee Relations; Suzanne England,
Attendance Management Consultant; Bob Van Santen, Program Manager.
For the Union: Richard Blair, Counsel; Sheryl Ferguson, Local Union President; Laurie
Wolsh, Observer; Mark Winton, Grievor.
HEARING HELD IN KINGSTON, ONTARIO ON APRIL 20,2010.
Copyright @ George T. Surdykowski Arbitration/Mediation Inc. 2011
[All rights reserved. Reproduction or storage in any retrieval system in whole or in part, in any
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AWARD
I. WHAT THIS CASE IS ABOUT
1. This grievance raises an issue of confidentiality of medical information. More
specifically, it raises the issue of the extent of the medical information that an employer
generally and the Employer herein in particular is entitled to when short term disability
(i.e. sickness) benefits are claimed under the 1992 Hospitals of Ontario Disability Income
Plan ("HOODIP") which applies in this case.
2. The Agreed Statement of Facts filed by the parties succinctly sets out the material
facts. It reads as follows:
1. At all material times, the parties' relationship was governed by the central
collective agreement between OPSEU and Providence Care, Mental
Health Services Hospital (See Attachment).
2. The Arbitrator has jurisdiction to decide this matter in accordance with the
Collective Agreement between the parties, and the Ontario Labour
Relations Act.
3. On January 28,2009 the grievor, Mark Winton (Employee #30666),
submitted a grievance (See Attachment) alleging:
"] grieve that] have been denied benefits under Article 30 and any other
that may apply. Furthermore] grieve that 1 am being harassed and
discriminated against contrary to the collective agreement and the
Ontario Human Rights Code. "
4. Providence Care is the leading, regional provider of non-acute health care
in Southeastern Ontario and a major centre for related research and
teaching, through its affiliation with Queen's University. Providence Care
specializes in the provision of complex continuing care, palliative care,
rehabilitation, geriatrics, long term care, forensic psychiatry, and mental
health services to adults of all ages.
Providence Care was incorporated in 1991. It currently has three sites in
Kingston: St. Mary's of the Lake Hospital; Mental Health Services; and
Providence Manor.
5. Mental Health Services Hospital (MHS) is a regional provider of
specialized services for adults with severe and persistent mental illness.
MHS provides treatment through three clinical program areas. Each
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program offers a full continuum of care - inpatient ( 192 beds), outpatient,
and community services:
· Adult Treatment & Rehabilitation Services Program
Provides a continuum of specialized services including five inpatient
units, specialty outpatient and outreach services for people with
schizophrenia, mood disorders, personality disorders, and dual
diagnosis.
· Geriatric Psychiatry Program
Includes two inpatient units, specialty outpatient and outreach services
for older people with severe mental illness and behaviour problems.
· Forensic Psychiatry Program
A 30-bed inpatient program for people with severe mental illness who
come into conflict with the law.
6. Mark Winton has been employed as a Registered Practical Nurse with
Providence Care since March 5, 2001, when the divestiture from the
Province of Ontario (Kingston Psychiatric Hospital) occurred. His
seniority dates from December 1999.
7. Mark Winton was scheduled to work 12 hour shifts on January 7,8 & 9,
2009 from 0700 to 1900 hours.
8. On January 7,2009 Mark Winton contacted area office at Mental Health
Services and advised them that he would be absent due to sick leave on
January 7 & 8.
9. On January 9,2009 Mark Winton contacted area office at Mental Health
Services and advised them that he would be absent due to sick leave for
his 0700 to 1900 shift on January 9.
10. On January 8, 2009 Mr. Winton's manager, Bob Van Santen sent Mr.
Winton a letter identifying his concerns around the absence and requesting
that he provide a medical note setting out "nature of your illness or injury"
(See Attached).
11. On January 12, 2009 Mr. Winton provided Mr. Van Santen with a medical
note stating that he "was absent from work for medical reasons" (See
Attached).
12. On January 14, 2009 Mr. Van Santen sent Mr. Winton a letter informing
him that the medical note provided was insufficient and that he was not
entitled to sick leave benefits for the period January 7- 9 inclusive (See
Attached).
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13. Mr. Winton never provided the employer with any subsequent medical
information related to this period of absence.
14. Mr. Winton was absent due to sick leave for 51.77 days in 2008: 69.03
days in 2007; and 44.5 days in 2006 (See Attached).
3. In summary, the grievor was absent from work due to alleged illness on January
7, 8, 9, 2009 and he claimed and continues to claim sick leave benefits in that respect. In
support of his claim for sick leave benefits for the three days, the grievor submitted a
handwritten note from a Dr. P. Hassan written on prescription scrip. Dated January 8,
2009, this note references the grievor by name and states that:
"The above patient was absent from work for medical reasons (IAN 7-9)".
4. The Employer wanted and continues to want more information. More specifically
the Employer sought a doctor's note that certifies that the grievor was actually seen by a
physician on January 8, 2009 and the nature of his illness or injury which prevented him
from attending work as scheduled on January 7,8,9,2009. The grievor refused and
continues to refuse to provide any additional medical information in that respect.
5. The nub of the issue is whether and ifso what further medical information the
Employer was/is entitled to.
6. The collective agreement between the parties includes the following provisions:
Article 4: NO DISCRIMINATION
4.1 The parties are both committed to a harassment free environment and recognize
the importance of addressing discrimination and harassment issues in a timely
and effective manner.
4.2 No Discrimination Under Ontario Human Rights Code
The Union and the Employer agree that there shall be no discrimination practiced by
reason of race, anceslly, creed, colour, place of origin, sex, sexual orientation, marital
status, family status, age, record of offenses, handicap, religious affiliation or prohibited
grounds under the Ontario Human Rights Code or any other applicable legislation.
4.3 No Discrimination. Interference. Intimidation. Restriction. Coercion
There shall be no discrimination, interference, intimidation, restriction or coercion
exercised or practiced with respect to any employee because of his membership or non-
membership in the Union or activity or lack of activity on behalf of the Union or by
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reason of exercising her rights under the Collective Agreement.
4.4 Filing a Grievance and/or OHRC Complaint
An employee who feelslbelieves that they have been the subject of harassment
may utilize the grievance procedure of this Collective Agreement and/or file a
complaint under the Ontario Human Rights Code or any other applicable
legislation.
4.5 Right to Freedom from Harassment in the Workplace
"Every person who is an employee has a right to freedom from harassment in the
workplace by the employer or agent ofthe employer or by another employee because of
race, ancestty, place of origin, colour, ethnic origin, citizenship, creed, age,
record of offences, marital status, family status or handicap". Ref: Ontario Human
Rights Code.
"Every person who is an employee has a right to freedom from harassment in the
workplace because of sex by his or her employer or agent of the employer or by another
employee". Ref: Ontario Human Rights Code.
The right to freedom from harassment in the workplace applies also to sexual
orientation.
4.7 Accommodating Handicapped Employees
The Hospital and the Union recognize their joint duty to accommodate
handicapped employees in accordance with the provisions of the Ontario Human
Rights Code.
Article 37:
PAY WHILE SICK
37.1
a) Full-time employees are eligible for benefits under this Article.
b) The Hospital will assume 100% responsibility for providing and funding a
short-term sick leave plan as described in the current Hospitals of Ontario Disability
Income Plan brochure.
c) The Employer agrees during the term of this Agreement to contribute
seventy-five percent (75%) of the applicable monthly premium towards
coverage of eligible employees under the Hospitals of Ontario Disability Income
Programme or equivalent with respect to employees who have completed the necessary
service requirements. The employee will pay the balance of the billed premium through
payroll deduction.
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d) For the purpose of transfer of the short-term portion of the disability
programme, employees on the payroll as of the effective date of the transfer with
three (3) months or more of service shall be deemed to have three (3) months of service.
For the purpose of transfer to the long-term portion of the disability programme,
employees will be credited with their actual service.
37.2 The Hospital agrees to pay employees an amount equal to any loss of benefit under
HOODIP for the first two (2) days of the fourth (4th) and subsequent absences in any
calendar year for employees claiming sick pay benefits.
37.3 a) The Hospital may, if an employee is absent for five (5) consecutive working
days or more, request that she submit a medical note to the Hospital.
However, where it is suspected that there may be an abuse of sick leave, such
proof may be required at any time. The Hospital will pay for a medical note
provided in accordance with this subarticle to a maximum of twenty-five dollars
($25.00) per medical note.
b) Where the Hospital requests any other medical note(s) beyond those set out in 37.3 (a),
the cost of such note shall be borne by the Employer.
37.4 There shall be no pay deduction from an employee's regular scheduled shift
when an employee has completed any portion of the shift prior to going on
sick leave benefits or WSIB benefits.
37.5 The provisions of Article 37 (pay While Sick) shall not apply to an employee ifthey
coincide with any other paid time off provided for elsewhere in the Agreement.
Article 38: USE OF ACCUMULATED CREDITS
38.1 An employee who is absent from her duties due to sickness or injury may,
her option, supplement their STSP benefits with the use of her accumulated credits
(vacation, lieu time) up to an amount equal to her regular pay.
(Italicized emphasis added.)
II. SUBMISSIONS
7. The Union does not dispute that the Employer was entitled to know that the
grievor was absent from work on January 7,8,9,2009 because he was incapable of
working for medical reasons. However, the Union submits that the Employer was not
entitled to anything more, and specifically that the Employer was not entitled to any
"nature of illness" information. The Union submits that such information is confidential
medical information, and that the Employer cannot require an employee to produce or
consent to the production of "nature of illness" or any other confidential medical
information unless there is an objectively reasonable justification for such a demand,
having regard to the provisions of the collective agreement. The Union asserts that in the
context of short term disability ("STD") benefits claims a doctor's note attesting to the
fact of medical incapacity is sufficient for an employer's purposes. Mr. Blair argues that
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there has been an "unfortunate disproportionate emphasis on semantics" in the
jurisprudence which seeks to distinguish between diagnosis and nature of illness which
has clouded the privacy issue. The Union asserts the primacy of the right to privacy, and
that the prejudice inherent in the release of private medical information, including the
potential for inadvertent or accidental inappropriate use or release of such information in
an imperfect system, requires that an employee's right to privacy of medical information
can only be compromised when it is reasonably necessary to do so. The Union submits
that the privacy rights of employees must be protected against systemic imperfections in
information integrity, and the potential for abuse, embarrassment, or even unwanted
sympathy.
8. The Union specifically references and disagrees with my decision in Re Hamilton
Health Sciences and Ontario Nurses' Association (2007) 167 L.A.C. (4th) 122
(Surdykowski) in that respect, and submits that an employer is not entitled to nature of
illness information as a matter of course, even (addressing the particular case herein) if it
asserts that the number or pattern of absences suggests that something is amiss. The
Union argues that the distinction that I and other arbitrators have drawn between
diagnosis and nature of illness draws a false dichotomy, because the appropriate focus
should be on the reason for the privacy protection of the confidential medical information
rather than on labels, and that there is no difference between the confidential information
that is disclosed by diagnosis and nature of illness. Counsel questions the willingness of
doctors to take the time to try to describe a medical condition in a way that does not
disclose more confidential information than necessary, and even doubts their ability to do
so. Mr. Blair submits that the cases that seek to distinguish between the two have "fallen
down a rabbit hole" of what is reasonably required by paying insufficient attention to the
question of necessity of disclosure. Observing that doctors put their licenses "on the
line" when they write doctors' notes, he says that when it comes to proof of medical
incapacity to work an attestation by a physician in that respect should be sufficient for an
employer's STD benefits purposes.
9. The Union submits that I should step back from the semantic debate and examine
the issue afresh from a "what is really required" perspective. It observes that if an
employer has doubts about the reliability of a medical certificate it can get at that issue by
asking questions, presumably of the physician in question, like: Did you see/examine the
employee? Is the employee a regular patient? Are you aware of the duties and
responsibilities ofthe employee's job? Etc. The Union argues that such an approach is
sufficient because the actual question for SID benefits purposes is: was the employee ill
(or injured) and unable to work because of that illness (or injury)?
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10. The Union submits that in this case the Employer was not entitled to any more
information than it got. It asks that I so rule and remit the matter to the parties, remaining
seized to deal with the matter in the event that my decision does not assist the parties to a
resolution.
II. In addition to my Re Hamilton Health Sciences, supra decision, Union counsel
referred in argument to Re Windsor (City) and C. UP.E. Loc. 82 (1995) 51 L.A.C. (4th)
61 (Brent, Chair); Re Ottawa Citizen and Ottawa Newspaper Guild, Local 205 (1996) 58
L.A.C. (4th) 209 (Dumoulin); Re St. Lawrence Lodge and o.NA. (1985) 21 L.A.C. (3d)
65 (Emrich); Re York County Hospital Corp, and S.E.l U, Loc. 204 (1992) 25 L.A.C.
(4th) 189 (Fisher, Chair); Re Halton (Municipality) and o.NA. (1993) 32 L.A.C. (4th)
137 (Swan, Chair); Toronto Hospital and o.NA. (1993) 32 C.L.A.S. 601 (Knopf, Chair);
Re St. Michael's Extended Care Centre and Health Care Guild (1994) 40 L.A.C. (4th)
105 (Smith, Chair - Alta.); Re Hydro Agri Canada and c.E.P. (2001) 95 L.A.c. (4th) 99
(Whitaker); PIPED Act Case Summary #233 [2003] C.P.C.S.F. No. 121 (Stoddart,
Commissioner); PIPED Act Case Summary #257 [2003] C.P.C.S.F. No. 145 (Stoddart,
Commissioner); Re Health Employers Association of British Columbia v. British
Columbia Nurses' Union [2006] B.C.C.A.A.A. No. 162 (Hickling - B.C.); Re Canada
Post and C. UP. W. (2004) 79 C.L.A.S. 132 (Joliffe - Canada); Re St. Joseph's Health
Centre and Ontario Nurses' Assn. (2005) 76 O.R. (3d) 22 (Ont. Div. Ct.); and, Re
Ontario Power Generation and Society of Energy Professionals [2009] O.L.A.A. No. 348
(Etherington) in support ofthe Union's submissions.
12. The Employer focuses on this particular case, and submits that it was entitled to
the information it requested (paragraph 4, above). The Employer submits that the issue
requires a balancing of interests; namely, the grievor's right to privacy versus an
employer's right to manage the workplace, and specifically attendance and attendance
issues. Mr. Pearson observes that while the Union does not trust doctors to be
sufficiently discreet in their descriptions of medical conditions it wants the Employer to
place blind trust in the same doctors to provide sufficient appropriate. Mr. Pearson
submits that an employer need not necessarily blindly accept a physician's attestation that
an employee was absent for reasons that entitle him to sick leave benefits, and that an
employer is generally entitled to nature of illness information in the first instance.
13. However, the Employer also argues that this is not a typical first instance case in
any event, and that a doctor's note stating only that the grievor "was absent from work
for medical reasons" (paragraph 3, above) was not sufficient in the circumstances. Also
referring to my decision in Re Hamilton Health Sciences, supra, Mr. Pearson submits that
employees have an obligation to attend work as scheduled, and that if an employee is
absent from work the onus is on the employee to provide a reasonable excuse an establish
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entitlement to sick leave benefits if claimed. The Employer submits that a bald assertion
of illness is not good enough to satisfy that onus.
14. Although the Employer agrees that there are systemic issues, Mr. Pearson submits
that the focus should be on the reliability of a bald attestation by a family physician that
an employee was absent from work for medical reasons, rather than on protection from
inadvertent disclosure by an employer. The Employer argues that a potential for
unnecessary or inappropriate disclosure is not a reason to deny it access to the
information requested, and that the greater danger comes from the perception that family
physicians tend to be patient advocates who are less than neutral or objective when it
comes to absences from work.
15. The Employer relies on Article 37 of the collective agreement, and to the
grievor's absences as referred to in point #14 in the Agreed Statement of Facts and its
January 8, 2009 letter to the grievor (referred to in point #10 in the Agreed Statement of
Facts). Mr. Pearson is careful to say that the Employer is not saying the grievor did
anything wrong, but is saying that it had reasonable cause for concern in the
circumstances such that the doctor's note provided is insufficient and its request for the
additional information was justified.
16. In addition to Re Hamilton Health Sciences, supra, Mr. Pearson referred to Re
Caledon (I'own) and C. UP.E., Loc. 966 [2008] O.L.A.A. No. 388 (MacDowell); Re
Telus Communications Co. and Telecommunications Workers Union [2010] C.L.A.D.
No. 11 (Lanyon - Alta.); Re St. Joseph's Health Centre and C. UP.E., Loc. 1144 (1988)
34 L.A.C. (3d) 193 (Joyce); Re Brant Community Healthcare System and Ontario
Nurses' Assn. (2008) 92 C.L.A.S. 363; Re Ontario Power Generation, supra; and Re
University Health Network and Ontario Nurses' Assn. [2008] O.L.A.A. No. 533 (Reilly)
in support of the Employer's position.
III. DECISION
17. The Union asks that I revisit my decision in Re Hamilton Health Sciences, supra.
I understand that that decision has been the subject of discussion and comment in the
labour relations community. I am aware that there are some who believe that decision
goes too far and others who believe it does not go far enough. The issue is an important
one, and I do not take umbrage at the Union's challenge to my analysis or conclusions, or
to its suggestion that "I got it wrong" in that case. An arbitrator should never take
offence to a reasoned challenge, or be averse to reconsidering the jurisprudence or his
own analysis in a previous case. Consistency and certainty are legitimate and laudable
objectives, but the real objective is to get it right. The first look at an issue isn't
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necessarily the best and the jurisprudence must evolve with the labour relations world. I
welcome the opportunity to reflect upon and take a second look at the issue.
18. In Re Hamilton Health Sciences, supra, I wrote, at paragraphs 19-46, as follows:
III.
WHAT CONFIDENTIAL MEDICAL INFORMATION CAN AN
EMPLOYER REQUIRE
General Principles
19. At least two questions typically arise in medical information cases: what is
appropriate as a matter of general practice and policy, and what is appropriate in a
particular case? These grievances directly raise the general practice and policy issue.
But they also engage the question of the particular case as the counterpoint. That is, a
question that arises is whether the sort of invasive inquiry that may be appropriate in a
particular individual case is also appropriate in the first instance in every case.
20. Both subiectively and obiectively. personal medical information is confidential
personal information. The confidentiality of the doctor/patient relationship and personal
medical information is universally and legislatively recognized as one of the most
significant privacy rights in modern Canadian society. There appears to be a general
societal notion that the right to privacy is a basic human right, particularly in a modern
democratic society. But employer and employee rights in that respect do not arise out of
the air. It is far from clear that there is a common law right to privacy (although there is
some Americanjurisprudence that seems to suggest there is - see, for example, Holloman
v. Life Ins. Co. of Virginia, 192 S.C. 454, 7 S.E. 2d 169, 127 A.L.R. 110), but !think it
unnecessary to digress into that discussion (particularly when the parties did not do so).
Although the right to privacy is not a right listed in the Canadian Charter of Rights and
Freedoms or the Human Rights Code, there is privacy protection legislation that
addresses and reflects the prevailing societal notions of privacy rights with respect to
personal health information. This legislation "occupies the field" and overtakes any
common law notion of a right to privacy. The Personal Health Information Protection
Act, 2004 (the "PHIPA"; see Appendix "D", attached) is a comprehensive piece of health
care privacy legislation. The Occupational Health and Safety Act (the "OHSA") contains
a medical information privacy provision which prevails over the PHIPA (section 63(6);
see Appendix "E", attached).
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. Except where
required or permitted by law an employer cannot seek and a doctor cannot give out m1X
patient medical information without the patient's freely given informed specific
authorization and consent. But there are few if any things that are confidential for all
purposes or in all circumstances and the privacy right that attaches to confidential
medical information is not absolute. The dispute between the parties reveals the tension
between an employer's right to or legitimate need for information in order to properly
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manage its business and the workplace, and to meet its statutory and collective agreement
obligations, and an employee's right to personal privacy.
22. The law that applies to privacy issues includes the "law" that the parties to a
collective agreement of individual contract of employment create for themselves. Of
course this party created law must fit within the mandatory parameters created by
legislation. There is some legislation that parties cannot contract out of (the Labour
Relations Act, 1995 and the Employment Standards Act, for example), and there is
legislation that the parties can contract out of (the Arbitration Act, for example). Parties
cannot contract out of the PHIPA or the OHSA.
23. Most modern collective agreements contain sick leave benefit provisions. A
fundamental principle that underlies every collective agreement is that bargaining unit
employees are under an obligation to regularly attend work as scheduled in accordance
with the collective agreement. and to provide notice of and a legitimate excuse for
absences from work. Employees are entitled to be paid for work performed in
accordance with the collective agreement. In the absence of collective agreement
provisions employees are not entitled to be paid if they do not attend work. Employer
paid leave benefits, including STD benefits, are all contractual. Paid leaves of absence.
whether the absence is due to illness or iniury. or otherwise are only available to the
extent that the collective agreement so provides. and then only on the negotiated terms
that the agreement stipulates.
24. The onus is on the employee to establish entitlement to collective agreement paid
sick leave benefits. This generally means that the onus is on the employee to establish
that an absence is legitimate in the sense that she is genuinely unable to report for work
due to illness or iniury. As a general matter. the employer is entitled to sufficient "proof'
of the emplovee's assertion that she is unable to attend work due to illness or iniury and
entitled to benefits. Also as a general matter. even if there are no paid benefits available.
or the employee elects to forgo them. the employer is entitled to notice of the fact and
expected duration of an absence for the legitimate business purposes of work force
management and absenteeism control purposes. Both the employee and the employer
have a legitimate interest in and an obligation to facilitate as early a return to work as
possible, with accommodation as appropriate where reasonably available. The employer
also has a legitimate interest in investigating suspicious absences and information
provided by an employee in that respect. Of course all of this begs the question: what is
sufficient "proof' in that respect? What information is the employer entitled to and what
information must the employee provide?
25. As a matter of general principle in that latter respect, what is required is
sufficient reliable information to satisfy a reasonable objective employer that the
employee was in fact absent from work due to illness or injury, and to any benefits
claimed (see, Arbitrator Swan's comments in Re St. Jean De Brebeuf Hospital and
C. UP.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.
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26. I note that the privacy legislation provision is written to require that (subject to
exceptions stipulated) the person concerned is the one who must provide an appropriate
consent to the disclosure of her confidential medical information. This does not
necessarily mean that the person concerned is the only one who can consent to the release
of confidential personal medical information for the purpose of establishing the bona
fides of an absence form work or an entitlement to paid benefits in that respect. In this
jurisdiction a union which holds bargaining rights for a bargaining unit of employees has
the exclusive right to represent those employees in all employment related matters. An
employee cannot bargain directly with her employer in that respect. Indeed, it is an
unfair labour practice for an employer and an employee to bargain directly with respect to
any term, condition or other matter related to the employee's employment in the
bargaining unit (sections 70 and 73 of the Labour Relations Act, 1995). Accordingly, the
Union is entitled to negotiate both collective agreement benefits entitlements and the
preconditions to such entitlements, including the information that must be provided in
order to obtain a particular benefit. That is, as the exclusive bargaining agent the Union
can effectively consent to the release of the confidential personal medical information
that is required in order to establish entitlement to an STD benefit payment on behalf of
bargaining unit employees (subject of course to a bargaining unit employee declining
available STD benefits).
27. The several layers oflegitimate 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 infOlmation 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 l1'ump the employee's privacy rights.
Nor do questions of expediency or efficiency. In the absence of a collective agreement
provision or legislation that provides otherwise the employer is entitled to know only that
the employee is unable to work because she is ill or iniured. 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 Drima facie proof sufficient to iustifY 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.
29. A diagnosis or statement of the nature of an illness is undoubtedly confidential
medical information. 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. I agree. The British Columbiajurisprudence draws a distinction between
a "diagnosis" and a statement of the "nature of the illness". Is there a meaningful
distinction between "diagnosis" and "nature of the illness" such that an employer is
entitled to the latter in the first instance?
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30. Santerre testified that the "primary diagnosis and symptoms" requirement reveals
the nature of the illness. That is undoubtedly so, but is the reverse is not necessarily the
case. Taber's Cyclopedic Medical Dictionary defines "diagnosis" as "the telID denoting
the name of the disease or syndrome a person has or is believed to have" based on
medical tests or an examination of symptoms. That is, a diagnosis is a formal statement
that specifically identifies a disease or iniury based upon an application of medical
scientific methods. It is a medical conclusion that is the product of a process of
identifYing or determining the nature and cause of an illness or injury from an
examination and evaluation of the patient. There are many kinds of "symptoms" (e.g.
objective, subjective, cardinal and constitutional), but the term generally refers to any
perceptible change in the body or its functions which indicates disease or injury. "Nature
of illness" is not a medical term. Having an "illness" or "injury" is the state of being sick
or injured, as the case may be. In this context "nature" refers to the kind, class or
essential qualities of a disease or injury. Accordingly, "nature of the illness" (or iniury)
suggests a general statement of a person's illness or inimy in plain language without any
technical medical details. including diagnosis or symptoms. Although revealing the
nature of an illness may suggest the diagnosis, it will not necessarily do so. "Nature of
illness" and "diagnosis" are not congruent terms. For example, a statement that a person
has a cardiac or abdominal condition or that she has undergone surgery in that respect
reveals the essence of the situation without revealing a diagnosis. Once again, what
information the employer (or its agent) is entitled to in that respect beyond that described
in paragraphs 24 and 27, above, is a matter of contract and legislation.
31. The 1980 HOODIP refers to a proof of disability "such as a doctor's certificate"
(see paragraph 52, below). A "certificate" is a document that testifies to the truth of
something. For example, a birth certificate testifies to a person's birth name, sex, and the
date and location of birth; a marriage certificate testifies to the fact and prima facie
legality of a marriage; and so on. A certificate from a qualified medical health
professional testifies that slhe has assessed a person as being incapable of working at her
occupation due to illness or injury for a specified period and constitutes prima facie proof
of those facts. I agree with the thrust of the British Columbia iurisprudence that it is not
inordinately invasive for an employer to ask that a medical certificate include the reason
for incapacity. which would appropriately consist of a general statement of the nature of
the disabling illness or iniury. without diagnosis or symptoms. It is not unreasonable for
an employer to require an employee to provide the reason for her absence or claim for
STD benefits. and the mere fact that providing that reason (i.e. the nature of her illness or
iniUl}') may suggest a diagnosis does not excuse the employee from providing the reason
in order to satisfY the onus on her to iustifY her absence and claim for benefits even in the
first instance.
32. But in the absence of a statutory or collective agreement requirement, a diagnosis
or description of symptoms or treatment goes beyond the certification of illness or
incapacity that is legitimately required in the first instance. It is only where the employer
has a statutory or collective agreement right to more information, or where the employer
has reasonable cause to suspect the genuineness, accuracy or quality of the information
provided to substantiate an absence that it is entitled to additional information. For
example, if the employer has an objective reason to doubt that the doctor who signed a
medical certificate actually saw or made any professional evaluation of the employee or
that the doctor was qualified to provide the assessment in the certificate, or suspects that
the employee had gone "doctor shopping", or has information that casts doubt on the
bonajides of the alleged illness or injury that the employer is entitled to seek additional
14
information that is specific to and reasonably necessary to address its concerns (see, for
example, Re York County Hospital and S.E.1 U, Loc. 204, (1992) 25 L.A.C. (4th) 189
(Fisher, Chair) at page 193). But these are issues that can arise in individual cases, and is
not the more general first instance issue before me in these policy grievances.
33. The issue in this case concerns the extent of the confidential medical information
that the employer can require an employee to provide in the first instance. This subsumes
the consent issue because the employer cannot require the employee to consent to a
release of more confidential personal medical information than it is entitled to for sick
leave justification or benefits purposes. The employer can always ask an employee if she
is willing to volunteer more information than the employer is actually entitled to, but an
employer cannot coerce an employee into "consenting" to provide broader disclosure,
and is not entitled to take disciplinary or other steps against, or deny sick benefits to, an
employee who declines to provide more medical information than the employer is
entitled to. 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 that 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. In the first instance for STD benefits purposes. therefore. in the absence of
statutory or collective agreement authorization an employer cannot require an employee
to consent to the release of more than certification that she is absent and unable to work
because she is ill or iniured. the general nature of the illness or iniury. that the employee
has and is following a treatment plan (but not the plan itself). the expected return to work
date. and what work the employee can or cannot do. The consent must be both focused
on the particular purpose and limited to the particular medical professional. A consent
that must be provided for the purpose of STD benefits should not include return to work
accommodation considerations other than whether there are likely to be any restrictions
on the anticipated return to work date. A "basket" consent that purports to authorize
anyone who the employer may ask to release confidential medical information is not
appropriate. Nor is it appropriate to require an employee to sign a forward-looking
consent that may exclude her from the confidential medical information loop. The
overwhelming weight of the arbitral jurisprudence takes a dim view of consents that
purport to give an employer prospective permission, particularly where the consent
purports to permit the employer to unilaterally (with or without notice to the employee)
initiate direct contact with a doctor or other custodian of confidential medical
information. Every contact should be through or at the very least with the knowledge and
consent of the employee, a separate consent should be required for every contact, and
every consent should be limited to the completion of the appropriate form or the specific
information required, as appropriate.
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
15
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.
A Reality Check
40. I recognize that the real world is not an ideal one. In the ideal world doctors
would have perfect knowledge of the relevant medical matters, their patients and their
patients' workplaces, and would be completely objective. Ifthat were so, a doctor's
simple statement certifying that an employee was ill and unable to work for some
specified period of time, and specifying restrictions for return to work and
accommodation purposes when and as appropriate, would be good enough for all
purposes and nothing further, including any diagnoses or even a statement of the nature
of the illness or injury would be required. But that is not the real world, or at least not the
one I am familiar with. Medical health professionals are also human beings. The fact is
that they are not always entirely objective. It is quite appropriate for medical health
professionals to act as advocates for their patients in medical matters within their
competence, but not when the advocacy extends beyond their medical expertise or
matters of which they have direct knowledge, such as when they have little or no
knowledge of the workplace or their patient's job or employment situation other than
what their patient decides to tell them.
41. Having said that, this case concerns nurses employed in a hospital setting. As a
group, physicians are uniquely situated to assess a nurse's ability to work in a hospital. A
physician is likely to know more about the work that a nurse patient typically performs
than he does about the work that other patients are engaged in. A physician is likely to
know what sort of nurse his patient is and the nature of the work in the department she
works in, and is therefore likely to be in good position to assess her ability to perform the
work of her occupation.
42. Arbitrators who have concluded that particular collective agreements do not
require medical diagnoses to be disclosed to the employer have observed that the
employer can often guess the diagnosis from the restrictions or other accommodations
that are suggested by a doctor. That is, a diagnosis can often be discerned even when it is
not specifically stated. If so, one might well ask: so why not provide the diagnosis? And
how can one reasonably object to providing information which will probably also
disclose the diagnosis when that information is reasonably required for return to work or
accommodation purposes? Is the situation different when an employee is seeking STD
benefits? And if it is, and strict limits are imposed on the use of the information that
must be disclosed in the first instance for those purposes, what is the likely result? Could
limiting an employer's access to confidential medical information result in applications
for sick leave benefits being rejected more often, perhaps requiring more frequent resort
to the expensive and time-consuming grievance arbitration process? If so, how does it
serve the employee seeking benefits, the privacy interests of that employee, the interests
of the parties, or the health system?
16
43. First of all, the issue before me concerns the Hospital's entitlement (through its
agent Cowan) to confidential medical information in the first instance. The fact that
additional information may subsequently be required does not mean that the employer is
entitled to it in the first instance.
44. Second, it is true that if the matter goes to arbitration, the employee will have to
establish that she is (or was) entitled to the benefits. To establish this, it will generally
not be good enough to present a doctor's certificate stating only that the employee was
disabled and unable to work for a specific or indefinite period. The employer will be
entitled to test the claim and the doctor's assertion by questioning the employee and
requiring that the doctor to attend the hearing and give evidence, something that even the
most cooperative doctors do not like to do. The employer will be entitled to examine the
basis for the simple certificate, which will inevitably include what the doctor did or did to
do, his/her knowledge of the patient and the workplace, and what conclusions, including
the diagnosis. and the basis for the conclusions s/he arrived at. The employee's personal
and medical history will be subj ect to much more detailed and intense scrutiny at such a
hearing, and in a much more public forum, than is the case in the normal benefits
application process. At the end of a lengthy, and for the employee an arduous and often
nerve-wracking legal proceeding, the employee may well be awarded the benefits sought,
which benefits may well have been approved many months before in the first instance if
more information had been provided in the first place. That is, there is a danger that an
employee will not receive benefits that she is entitled to in a timely way, when they are
most needed.
45. But the real world also includes a society mandated legislated right to privacy.
and the fact that narrow disclosure of medical information may have unfortunate or
unintended consequences in an individual case. or that broad disclosure of medical
information may be appropriate or required in preparation for or during a grievance
arbitration (or other legal) proceeding does not alter the analysis. Either an employee has
privacy rights or she does not. A right that cannot be exercised is no right at all.
Although early broad disclosure might prove to have been useful in a patiicular case, this
does not mean that such broad disclosure is necessary or appropriate in the first instance
in every case as a matter of general policy. There are many business or other matters on
both sides of the labour relations divide that are "confidential" outside of the grievance
litigation process which are no longer confidential for litigation purposes once the
grievance arbitration process is invoked. That does not suggest that they should not
remain confidential outside of the litigation process. Indeed, the legislative scheme treats
litigation disclosure requirements or obligations as an exception to the general rule of
voluntary consent restricted to the purpose disclosure of personal health information.
46. The appropriate requirements and concomitant limitations on the disclosure of
confidential medical information is also something that the parties to a collective
agreement can address themselves to in bargaining. In a particular case, the possible
consequences of refusing to provide broader disclosure than is technically required in the
first instance is something for the individual employee to weigh, hopefully in
consultation with the Union, when she is considering her response to a request for
confidential medical information. It is also one of the things that the parties and the
employee(s) must consider when they contemplate engaging the grievance litigation
process. But the real significance of the real world analysis is that it focuses on
individual circumstances and further demonstrates that less disclosure of confidential
17
information is required in the more general first instance inquiry than in an individual
case in which questions arise.
(Emphasis in paragraphs 33 and 44 supplied; other emphasis added.)
19. As set out in paragraph 52 of Re Hamilton Health Sciences, supra, the 1992
HOODIP provides in part as follows:
Introduction
The Hospitals of Ontario Disability Income Plan ("HOODIP") is comprised of two parts:
the short term disability plan (Part A) and the long term disability plan (Part B) ... the
Sick Pay benefit (Part A), covering the first 15 weeks of Total Disability. The Sick Pay
benefit is administered and paid by the Participating Employer. . .
Definitions
Actively worl{ing and Actively at Work mean the performance for a Participating
Employer of the regular duties of the person's own occupation for one full working day
or shift. This includes vacation days, personal days and/or holidays as well as occasional
days used for educational purposes or union business, as granted by the Participating
Employer. An Employee on extended leave, such as an approved leave of absence, is not
considered to be Actively at Work.
Total Disability and Totally Disabled means the Member has a medically determinable
physical or mental impairment due to injury or illness which prevents her from
performing the regular duties of the occupation in which she participated immediately
preceding the start of the disability.
Entitlement to Benefit
A Member is not considered Totally Disabled unless she is under the active. continuous
and medically appropriate care of a Physician and is following the treatment prescribed
by the Physician for that disability.
A Member is not considered Totally Disabled due to a psychological disorder unless she
is under the active and continuous care of a Physician or other professional satisfactory to
18
the Participating Employer and is following the treatment prescribed by the Physician or
other professional for that disability.
Recurrence of Disability
Recurrence
If a member returns to work after receiving Sick Pay benefits under this Plan any
subsequent period of Total Disability for the same or related cause will be considered as a
continuation of the previous benefit period, unless the successive periods of Total
Disability are separated by a period where the Member is Actively at Work for:
1. three regular work weeks for full-time employee; or
2. all of the scheduled working days within 21 calendar days for a part time
employee,
in which case her benefit period of 15 regular work weeks will be reinstated in full.
(Emphasis added.)
20. I have reviewed and given a great deal of thought to the issue and the
jurisprudence cited by the parties. As the decisions cited illustrate, there was a great deal
of privacy jurisprudence before my decision in Re Hamilton Health Sciences, supra, and
there has been more since. I note that the cases cited reveal a selected history of the
evolution of adjudicative thought on the issue. Other than noting that the older decisions
must therefore be read with care and due regard to the subsequent developments, I find it
unnecessary to embark upon an analysis of the individual cases, and I will only reference
them as I consider necessary. The applicable principles are settled, and there is nothing
in any of the cases cited (or that I am otherwise aware of) that reveals any emerging
departure from these principles. As far as I am aware, the Re Hamilton Health Sciences,
supra, is being followed in the community and by other arbitrators in this jurisdiction.
21. In Re Hamilton Health Sciences, supra, I reviewed and applied the principles
applicable to the case before me. Accordingly, it is important to remember what that case
was and was not about.
. It concerned policy grievances with individual separately grieved individual
employee examples offered in aid of the policy grievance. The individual
19
grievances were not before me, and it was neither necessary nor appropriate for
me to specifically comment on any individual case.
. It concerned the appropriateness ofthe particular "Medical Certificate of
Disability" in a first instance application for STD benefits under either the 1980
or the 1992 HOODIP.
. The union in that case did not object to the use of a consent and medical
information form to establish entitlement to STD benefits. The union did not
dispute that the employer was entitled to some medical information. The dispute
concerned the nature and extent of the consent and confidential medical
information being required by the employer as a general matter in first instance of
every application for STD benefits under a HOODIP.
· It did not concern any L TD benefits or accommodation scenario, where different
considerations may apply.
22. It is also important to be clear about what I did and did not say in Re Hamilton
Health Sciences, supra:
· I said that personal medical information is confidential personal information, and
that the confidentiality of the doctor/patient relationship and personal medical
information is universally and legislatively recognized as one of the most
significant privacy rights (paragraph 20).
· But I also emphasized that employer and employee rights in that respect do not
arise out of the air (paragraph 20), and that the employee privacy right that
attaches to confidential medical information is not absolute (paragraph 21). The
mere fact that medical or other information is private or confidential cannot mean
that it will never have to be disclosed. Whether or not and the extent to which
such information must be disclosed depends on the circumstances (including any
legislated or contractual requirements or prohibitions) and the legitimate
purpose(s) for which the information is objectively required.
. I observed that employees are obliged to attend work as scheduled and to provide
notice of and a legitimate excuse for any absence from work in accordance with
the collective agreement. Sick leave benefits are available only to the extent that
a collective agreement so provides, and an employee who seeks such benefits is
obliged to produce objectively satisfactory proof of entitlement in that respect
(paragraphs 23-24). An employee who fails to do so may not be entitled to
20
benefits, and although I did not mention it in Re Hamilton Health Sciences, supra,
in appropriate circumstances runs the risk of discipline or even discharge.
· I said that the nature of confidential medical information is such that a
conservative approach to disclosure is appropriate (paragraphs 25, 33-34), and
that as a general matter in the absence of specific collective agreement or other
contractual requirements a certificate from a qualified medical doctor which
specifies that an employee is absent from work because he is unable to work due
to illness and injury for a specified period constitutes prima facie proof which
satisfies an employee's first instance reporting obligations, and that 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 (paragraph 27).
· However, I also concluded that it is not inordinately invasive for an employer to
ask that such a medical certificate include the reason for incapacity, consisting of
a general statement of the nature ofthe disabling illness or injury, without
diagnosis or symptoms. I concluded that it is not unreasonable for an employer to
require an employee to provide the reason for her absence or claim for SID
benefits as a matter of general principle, and because of the "reality check
considerations in paragraphs 40-46.
. I agreed with the distinction drawn in the modern jurisprudence between
diagnosis and nature of illness information, but emphasized that the terms are
neither congruent not mutually exclusive. I concluded that the mere fact that
providing the nature of illness or injury may suggest a diagnosis does not excuse
the employee from providing the reason in order to satisfy the onus on the
employee to justify her absence and claim for benefits even in the first instance
(paragraphs 30-31).
23. The Union challenges my reality check in Re Hamilton Health Sciences, supra. It
questions the willingness of doctors to take the necessary time to sufficiently describe the
nature of an illness of injury without unnecessarily disclosing a diagnosis or other
confidential medical information.
24. The Union submits both that an employer cannot guarantee the security and
proper use of confidential medical information, and that the sanctity of personal medical
information is such that employers (and presumably arbitrators) should accept a doctor's
note that simply states that an employee is or was ill or injured and unable to work, and
nothing more, at face value, because doctors put there license to practice medicine "on
21
the line" every time they issue such a "certificate". The Union in effect asserts that a
doctor's note should be accepted without question
25. The Union's submission is rooted in selective optimism which is inconsistent with
experience. It is also internally inconsistent. It both criticizes the imperfections of
information security systems and posits a world populated by perfect employees and
medical health care professionals.
26. I agree with the Union's assertion that there is always a possibility that private
and confidential medical information may be inadvertently released or used
inappropriately. Try as they might, it is impossible for anyone to absolutely guarantee
information security. All that anyone can do in that respect is the best they can. There is
nothing before me that suggests the extent to which the inadvertent (or intentional)
release or misuse of confidential information occurs, either generally or at the workplaces
operated by this Employer. More specifically, there is no indication of how often it
happens, if at all, or that best efforts are demonstrably "not good enough".
27. In a perfect world, the security and proper use of confidential private medical (or
other) information could and would be guaranteed. But to be perfect the world would
have to be populated by perfect human beings. In a perfect world everyone would be
objective, honest, ethical, candid, and truthful. Doctors and other medical health
professionals would have all the time and resources necessary to apply their perfect
medical knowledge and skills, to their perfect knowledge of their patients and their
patients' personal and workplace circumstances. In a perfect world employees would
also be perfect. They would always fully and honestly disclose all necessary pertinent
information to their employer and medical health professionals. They would never claim
to be unable to work because of illness or injury when that was not the case, or seek
benefits they are not entitled to. In a perfect world everyone would act perfectly, and
there would be no need for unions, lawyers, arbitrators or courts.
28. But as I observed in Re Hamilton Health Sciences, supra, (in paragraph 40) we do
not live in a perfect world. On the contrary, ours is a patently imperfect world, populated
by imperfect human beings who design, construct, administer, maintain and operate in
and provide services from imperfect workplaces, medical health systems, and information
management and storage systems. It is impossible to completely guarantee that
confidential private medical information will not be inadvertently or accidentally used or
released inappropriately - regardless ofthe storage protocols or diligence of the persons,
including physicians and other medical health professionals, charged with gathering,
storing, using or safeguarding such information from misuse or misappropriation.
22
Perfection may be the goal, but that goal is neither attainable nor a test for privacy
protection.
29. Some physicians are excellent. Most are good. Some are neither. The same is
true of all professions, trades or groupings. Employers, employees, doctors, lawyers,
arbitrators and judges: all of us with varying degrees of knowledge, skill and ability, and
ethics, and none of us with the time or resources we would like to do the best job
possible. Instead we all (or most of us) do the best we can with what we have.
30. The fact is that most of our medical health professionals, particularly family
physicians, are under supported and overburdened. The jurisprudence contains many
examples in which scrutiny has revealed an insufficient basis for a submitted doctor's
"certificate". On the basis of that jurisprudence, and my own experience as arbitrator in
such cases, I think it fair to say that the pressures ofthe modern medical practice in this
jurisdiction are such that a doctor's note to excuse a short-term absence from work may
be available virtually upon request without much if any inquiry much less examination by
the doctor or other medical health professional who is asked for such a note. Whether
that is true of a particular medical health professional or on a particular occasion is
generally not known in advance. Further, nothing has come to my attention that causes
me to retract my observation in Re Hamilton Health Sciences, supra (at paragraph 40),
that family physicians in particular are prone to acting as advocates for their patients,
leaving the reliability of a note that contains only a general statement that the employee
was unable to attend work due to illness or injury particularly in doubt. The sad fact is
that patients in our complex but underfunded and undermanned health care world often
need an advocate to help them navigate the system. But such advocacy may be
misplaced when it enters the employment or legal world. Particularly in the unionized
work world there is a very limited place for medical health professionals as advocates.
There the role of the medical health professional is to provide the necessary medical facts
and expert opinions as required, and to leave advocacy in the collective agreement
benefits administration process, or the grievance arbitration process, to the union which is
charged with the duty and responsibility of representing employee interests in that
respect.
31. The Union argues that the distinction that I and other arbitrators have drawn
between "diagnosis" and "nature of illness" presents a false dichotomy. I am not
persuaded by the Union's submissions.
32. First, arbitrators do not focus on labels or other semantics without regard to
substance. But like everyone else, including lawyers, arbitrators can only express
themselves in words. Accordingly, words, and the use and meaning of words, matter.
23
33. Second, no one has suggested that diagnosis and nature of illness are necessarily
separate categories. On the contrary, in Re Hamilton Health Sciences, supra (at
paragraph 30), I accepted that a description of the nature of an illness or injury will tend
to suggest a diagnosis to some extent. However, I continue to be ofthe view that nature
of illness (or injury) is a general statement of same in plain language without an actual
diagnosis or other technical medical details or symptoms. Diagnosis and nature of illness
are not synonymous terms, but there is an overlap between them, such that a description
of the nature of an illness or injury may reveal the diagnosis and in others it will not.
That this is the case is a consideration, but it is not the determining factor. An
employee's privacy rights are an important consideration, but they are not to only or
determining consideration.
34. An employee's privacy interest and concern that confidential personal medical
information not be disclosed unnecessarily is a given. As the Union must and does
concede, it is equally apparent that an employer is entitled to sufficient information to
establish than an employee's absence from work was legitimate, and that an employee
who claims sick leave benefits for an absence was in fact unable to work due to illness or
injury. This is so both generally and in the circumstances of a particular case. I agree
that the question is one of necessity. I also agree that the employee's privacy interest is
paramount, and that test is therefore objective reasonableness, with any doubt being
resolved in favour of the employee.
35. Most employees are honest. Most employees do not claim that they are unable to
work because they are ill or injured when they do not honestly believe that is the case.
Most employees do not claim sick leave benefits they are not entitled to. But that is not
all employees all the time. The jurisprudence and experience provide too many examples
of unjustified employee claims or misconduct in that respect to be ignored.
Consequently, although most employers generally accept a simple "certificate" like the
one submitted by the grievor in this case most of the time, they are not obliged to do so.
To the extent that decisions such as those of the Federal Privacy Commissioner in PIPED
Act Case Summary #233, supra, and PIPED Act Case Summary #257, supra, suggest that
in the absence of pro oft hat more is required the "word of the employees' physicians" in
such a medical "certificate" without any details of nature of illness is sufficient, I
respectfully disagree. I also respectfully disagree with Arbitrator (as he then was)
Whitaker's conclusion in Re Hydro Agri Canada, supra (at page 108), that an employer
is generally not entitled to require that a medical certificate include the date(s) of the
relevant visit(s) to the medical health professional who provides the certificate. Not only
is this at best remote confidential medical information, the date ofvisit(s) will both tend
to confirm that the medical health professional actually saw the employee for the purpose
24
of the certificate, and will reveal the timeliness ofthe visit relative to the absence in issue,
which is a relevant consideration.
36. Further, while I agree that the questions posited by the Union (paragraph 9,
above) may be helpful, that does not mean that other questions are necessarily
inappropriate. Such questions do not necessarily address the benefits entitlement issue,
and are the sorts of questions that tend to arise after the first instance ifthe employer is
not satisfied that the "certificate" the employee has submitted is sufficient.
37. I am satisfied that as a matter of general principle the medical note submitted by
the grievor in this case (point # 11, paragraph 2, above) is patently deficient and that
further medical information was necessary in that respect. I am satisfied that the
Employer was entitled to require the grievor to provide a medical note which confirmed
that he was seen by a physician on January 8, 2009 and which described the nature of the
illness or injury for the purposes of assessing the grievor's claim for collective agreement
sick leave benefits for his absence from work on January 7,8, and 9,2009. I am satisfied
that that did and does not inordinately encroach upon the grievor's privacy rights.
38. Further, the Employer's assertion that it had reasonable cause for concern in the
circumstances, in conjunction with its reference to number of absences (49) and the
number of days the grievor was absent (167.3) between January 1, 2006 and the absence
in issue and its reference to Article 37.3 of the collective agreement (paragraph 6, above),
indicates that the Employer was (and is) suspicious "that there may be an abuse of sick
leave". There is nothing before be that suggests that the Employer's suspicion was
unreasonable in the circumstances. Accordingly, the Employer had a collective
agreement right to a better medical note than the one submitted by the grievor, and I am
satisfied that it was reasonable in the circumstances for the Employer to request nature of
illness information in the manner it did in its January 8 and 14,2009 letters to the grievor
in that respect.
39. Further, and in any event, I am satisfied that the Employer is entitled to that and
arguably greater disclosure of confidential medical information for the purposes ofthis
proceeding.
40. I THEREFORE DECLARE THAT the Employer was and is entitled to the
otherwise confidential medical information requested in its January 8 and 4,2009 letters
to the grievor; namely, a medical note which confirms that he was seen by a physician on
January 8, 2009 and describes the general nature of the illness or injury, without technical
medical details, diagnosis or symptoms, with respect to his absence from work on
January 7,8, and 9, 2009.
25
41. I ORDER THE UNION AND THE GRIEVOR TO FORTHWITH take the
steps necessary to obtain and provide to the Employer a medical note which confirms that
the grievor was seen by a physician on January 8, 2009 and describes the general nature
of the illness or injury, without technical medical details, diagnosis or symptoms, with
respect to his absence from work on January 7,8, and 9,2009.
42. I remit the matter to the parties. I will schedule a further hearing in consultation
with the parties upon written request by either party.
43. I shall remain seized for the purposes of rectification, and to deal with any dispute
concerning the administration or application of this Award.
DATED AT TORONTO THIS 27TH DAY OF JANUARY 2011.
~7.S~
George T. Surdykowski - Sole Arbitrator