On March 10, 2014, Saskatchewan Labour Arbitrator Daniel Ish
decided a policy grievance relating to the management of
Saskatchewan Telecommunications' ("SaskTel") extended
sick leave program and individual grievances relating to whether
employees had provided sufficient medical information in support of
The policy grievance was brought by Unifor Local 1S
("Unifor"). In particular, Unifor took issue with
SaskTel's decision to delay paying benefits until a sick leave
claim has been approved and with the use of an online medical tool
to evaluate an employee's eligibility for benefits.
In 2011, SaskTel decided to delay making sick leave payments
until after an employee's application had been evaluated and
approved. If benefits were approved, employees received benefits
retroactive to the first day missed. Previously, employees would
receive sick leave benefits as soon as an application was
submitted. Employees who were denied sick leave, however, were not
required to repay the benefits received.
Arbitrator Ish found that employees are not automatically
entitled to sick leave benefits upon the submission of a
doctor's note or sick leave application. Employers, and/or the
entity administering the benefits plan on its behalf, must be given
an opportunity to review and assess the claim before benefits
become payable. SaskTel has a legitimate interest in limiting its
liability for the payment of sick leave benefits and as such is
entitled to wait until they have been approved before making them.
At the same time, Arbitrator Ish found that SaskTel had an
obligation to promptly assess claims and identify any problems with
the documentation submitted. Nonetheless, in this case, SaskTel was
required continue to make the interim payments up until a new
collective agreement could be negotiated.
Unifor also objected to the use of an online medical database by
Great West Life, which administers the sick leave plan on behalf of
SaskTel, to assess claims. The database sets out average medical
recovery times and the average length of absences from work for
various illness and injuries. Arbitrator Ish found that the use
such tools was appropriate as long as the statistical information
was not the sole determinant of an individual's eligibility for
benefits. The individual circumstances of each claimant still
needed to be taken into consideration.
Arbitrator Ish was also asked to decide individual grievances
which related to whether employees had provided sufficient medical
information to Great West Life. Arbitrator Ish acknowledged that
employers, in certain circumstances such as long-term absences or
significant accommodation requests, may require detailed medical
information including a diagnosis to assess a claim.
One of the individual grievances related to an employee who had
been provided with extended sick leave benefits in February of 2012
and reduced hours of work. The sick leave and reduced work hours
continued unchanged into March of that year. In the latter half of
March, GWL sought additional medical information. A medical
questionnaire was completed by the employee's doctor. GWL,
however, remained unsatisfied and sought additional medical
information from the employee's psychologist. GWL also stated
that benefits would be withheld if this information was not
provided. The employee provided her consent to a discussion with
Arbitrator Ish found that the medical questionnaire contained
extensive medical information which ought to have been sufficient
to find the employee remained eligible for benefits. Moreover,
Arbitrator Ish found that GWL did not have reasonable grounds to
doubt the medical information provided in the questionnaire.
Arbitrator Ish also found that GWL breached the employee's
privacy when it sought and obtained additional information from the
employee's psychologist as he felt that consent was not freely
given. Arbitrator Ish, however, declined to award damages: he found
that while GWL was overly aggressive in its attempts to obtain
information, this was not an "egregious" case which
warranted an award of damages.
Whether or not an employee has provided sufficient medical
information will depend on the circumstances. Generally, employees
will only be required to provide minimal medical information to
justify short absences. An employer, however, may be entitled to
receive additional medical information where an individual is off
work for a long period, requires significant accommodation, or if
there are reasonable grounds to doubt the medical information
submitted by the employee.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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