Canada: Can't Get Vacation Approved? Try Using Sick Leave

On occasion, there appears to be no way to reconcile two seemingly opposite conclusions on similar fact scenarios. This circumstance came up recently in Atlantic Canada in these similar cases: Halifax Herald and Halifax Typographical Union, Local 30130, and Newfoundland and Labrador Health Boards Association and Newfoundland and Labrador Nurses' Union. In both of these cases, the grievors – one a photographer, the other a nurse – requested vacation leave and both were denied. Both grievors then went off on sick leave which coincided with their proposed vacation leave. Both presented notes from medical professionals excusing their absence. Both grievors then travelled to Florida during the period of their sick leave, saying that the travel was a "last-minute" decision.

The nurse's travel was discovered when her manager encountered her at the check-in counter at the local airport, en route to Florida. On her return to work, the employer held two investigative meetings, asking how the nurse was well enough to travel to Florida while on sick leave. The employer made it clear, however, that it did not take any issue with her physician's declaration that she was sick and required time away from work. The nurse first explained that her trip, which had been planned with her family, had been cancelled and that she made a last minute decision to go. At the second meeting, she produced documentation which showed that she had never actually cancelled her flight, but she still claimed that she had cancelled the "trip". The employer, not satisfied with the explanation she provided, declined her paid sick leave and issued a further four week unpaid suspension for misuse of sick leave. At the grievance hearing, the nurse's physician testified that the travel would have been beneficial in light of the nurse's condition, which was stress and anxiety-related. The arbitrator upheld the grievance, overturning the discipline, which outcome was confirmed on judicial review.

By contrast, in a series of correspondence between the employer and the photographer, all of which was tabled at the grievance hearing, the photographer refused to provide information regarding the nature of her symptoms. This was a central factor in the denial of her grievance. Moreover, the period of absence coincided perfectly with the dates of the vacation she had initially requested, which rightly aroused suspicion on the employer's part. A letter from her physician in response to questions from the employer was non-specific and did little to allay the employer's concerns. The employer's inquiries focused on how the photographer's symptoms prevented her from working, specifically connected with the legitimacy of the medical leave. When the photographer cited privacy concerns, the employer offered to have an independent physician assess her symptoms, but she declined. The arbitrator found that the employer had "bent over backwards" to accommodate the photographer's concerns and that it was therefore entitled to exercise discipline, amounting to declining to pay for the claimed sick leave.

Obtaining sick leave without a valid medical excuse is grounds for discipline. As an employee benefit, sick leave must be exercised with some trust and honesty from both parties. The employee has a duty not to misuse the leave and must be honest. The employer, for its part, is entitled to reasonable information to justify the need for sick leave particularly when absences are frequent or, as was the case in both of these grievances, conveniently timed.

At first glance, it is difficult to reconcile how one employee on sick leave is permitted to travel to Florida while another cannot, but these two cases are not the same in all respects. The nurse's physician recommended six weeks' absence from the workplace. She shared medical information with her employer which showed that her symptoms related to stress and anxiety and at the hearing provided evidence of personal circumstances that contributed to her symptoms. Her physician supported travel, with her family, to a relaxing location in the context of those symptoms. Viewed from this perspective, it is somewhat understandable that the arbitrator accepted the physician's assessment of the nurse's limitations while on sick leave, though it does little to explain how the arbitrator overlooked her lack of forthrightness at the investigative meetings.

On the other hand, the photographer refused to provide medical information after a suspicion had been raised as to the timing of her sick leave, though her employer made several attempts to address her concerns. During the period of sick leave, she flew to Florida and drove back to New Brunswick with her mother. The employer was not in a position to assess whether the photographer's symptoms could have been assisted by the Florida trip, since she did not share the necessary medical information. In the circumstances and given the lengths to which the employer had gone, it was justified in denying her paid sick leave for the duration of her absence.

What this means for you

Managing sick leave will always be a challenge for employers. Develop a clear policy surrounding the use of sick leave and follow it in every case. Be clear when you have suspicions that an employee is misusing sick leave and provide ample opportunity for him or her to address your concerns. Approach the issue with an open mind. Perhaps most importantly, put it in writing. Take clear meeting notes and follow up with written correspondence confirming what took place. The written record will help to refresh your memory if you are called upon to testify and it will be strong evidence at a grievance arbitration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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