Worker required to provide medical certificates for absences related to medical conditions
“Even though an employer may have policies in place about attendance management, and it may have made the effort to have a full framework for managing absenteeism, it’s still expected to customize accommodation and any requests that they make of employees.”
So says Sharaf Sultan, principal of Sultan Lawyers in Toronto, after the Federal Public Sector Labour Relations and Employment Board ruled that a federal employer’s application of its attendance management plan was discriminatory against a worker with a disability.
The worker was an inmate pay assistant with the Correctional Service of Canada (CSC) at its Federal Training Centre in Laval, Que. In April 2013, she asked her manager at the time for a variable schedule of four days a week, supported by a medical certificate from her physician that stated the worker had chronic pain.
The certificate didn’t elaborate, but the request was related to a medical condition that was exacerbated by repetitive movements and required occasional rest periods.
CSC asked for clarification on the period for which the accommodation was needed, but the doctor didn’t respond. The worker then went on medical leave.
The worker returned to work on a graduated basis in July and started working full-time hours in September, but with a compressed schedule - she would work slightly longer hours each day with every second Friday off.
Attendance management
On Jan. 21, 2014, the worker was experiencing symptoms from another medical condition involving an illness that recurred over several months. She told her manager that she was wasn’t feeling well and had to leave, but there were questions about her early departure as she had seemed fine earlier. Six days later, the worker was called to a disciplinary interview about her unauthorized absence.
The worker didn’t want to discuss her health issues, but she offered to provide a medical certificate. There was no discipline issued.
In March 2014, the new manager reviewed the worker’s attendance and saw what he believed was a pattern of repetitive and unusual leave usage over the previous 12 months. This involved several instances of sick leave, family responsibility leave – the worker had three children - and medical appointment leave that were in conjunction with weekends, compressed days, and statutory holidays.
The manager contacted CSC’s labour relations department, which suggested an informal interview under the recently implemented National Attendance Management Program (NAMP). The NAMP’s purpose was to “ensure consistent, supportive and fair management of employees’ attendance” with a focus on improving attendance “through awareness, intervention, and individual case management.”
Grievance challenges requirement
At an April 15 meeting, the worker explained her family responsibility leave, but was uncomfortable talking about her medical issues. Management determined that the worker’s explanations for her absences in conjunction with weekends or other days off were unsatisfactory and they gave her a letter stating that she would be required to provide medical certificates for sick leave requests.
The worker filed a grievance challenging the requirement that she provide medical certificates for all sick leave, arguing that it was discriminatory and a breach of the collective agreement from unfair scrutinization of her absences – some of which were due to medical conditions.
The worker claimed damages of $20,000 for pain and suffering, $20,000 for CSC’s “wilful and reckless discriminatory practice,” and full reimbursement for lost wages and benefits from the discriminatory practice.
Medical certificate requirement questioned
CSC rejected the grievance, but noted that the decision to impose a requirement for medical certificates should have been made by the NAMP co-ordinator, so the matter should be reviewed to see if it should be referred to the co-ordinator and the April 15 letter should be amended until then.
However, the worker’s manager continued to request certificates for medical appointments and leaves.
On Aug. 15, the NAMP co-ordinator – who was unaware that medical certificates had been requested from the worker since April - advised that the worker would be required to provide a medical certificate for every sick leave absence for the next three months. He said that CSC wasn’t doubting her health problems, but the pattern of her leaves raised questions.
The worker went on leave for the month of September 2014 with income averaging. After she returned, she had a new manager who told her that she should not have been placed under the NAMP because her leave balance had never been negative.
On June 3, 2015, the worker referred her grievance to adjudication before the board.
Disability discrimination
The board determined that the worker established a prima facie case of discrimination. She had a protected characteristic - a disability related to chronic pain and illness that could periodically require time off, established by medical information from her physician - and CSC’s actions caused an adverse impact related to that disability, the board said.
The board also found that CSC’s managers imposed the NAMP in a flawed manner. The initial decision to require medical certificates should have been made by the NAMP co-ordinator, not the worker’s direct supervisors. Despite an internal directive at the first level of the grievance procedure indicating this misapplication, the requirement remained in effect, the board said.
In addition, CSC’s “minimal understanding” of the worker’s chronic pain prevented it from realizing that the worker’s need for rest didn’t make the timing of her sick leave near other periods of time off unusual, said the board.
The NAMP also allowed employees to explain their absences, but CSC appeared to be “completely closed” to the worker’s explanations of needing rest because of her medical conditions, the board said.
It was a misstep for CSC to rely so much on the number of absences and management’s subjective suspicion as to the reason for them, rather than relying on good faith that the worker was disabled and required accommodation, according to Sultan.
“My sense was the that the board felt that the medical certificate request seemed to be almost automatically triggered based on the number of absences and what the employer saw as suspicious absences,” he says. “There was an assumption based on suspicion, and the board is saying, ‘We're not interested in your subjective opinion as to whether the absences may be suspect.”
Adverse impact
The board further noted that while CSC had the right to request medical documentation, the process used to enforce the requirement was applied unfairly – including an eight-month period during which she was required to provide medical certificates, from April to November 2014 - leading to unnecessary stress and anxiety for the worker. This was an adverse impact, said the board.
“I think if [CSC] had been forthright about any suspicion they had as to whether the worker was disabled, and they said, ‘Here's where the gaps are and we want a medical certificate that answers all these questions,’ the board might have been open to that,” says Sultan. “But instead, [CSC] unilaterally decided it was going to be harder on her.”
In addition, the board found that the NAMP was imposed because of the worker’s absences, which the worker’s physician indicated were connected to her disabilities, and CSC didn’t establish that it suffered undue hardship from the absences or that the requirement to provide medical certificates was a bona fide occupational requirement.
The board noted that the worker never made a clear request for accommodation and her leave was always granted, so she didn’t suffer material damages. As a result, CSC was ordered to pay the worker $1,000 in human rights damages for the stress and impact on her dignity. The board declined to award additional damages, concluding that while CSC’s actions were mismanaged, they weren’t intentionally harmful.
“The underlying message is, don’t be harder on the worker because you question the legitimacy of their absences - put it to the person and yes, you can require a third-party opinion such as the worker’s medical professional,” says Sultan. “Or if you even think that it's unreasonable and you need an independent medical exam, you could make that argument - the point is, put it to the worker out of fairness, don't just start to arbitrarily impose requirements. Request information that’s necessary to determine if they have a disability.”
Flexible application of policies
While it’s good to have policies, Sultan warns not to overly rely on them automatically.
“Policies are there as a general guide towards compliance - they can be helpful, particularly when you have staff turnover to allow for uniformity, but uniformity only in the basic framework of their application, particularly of human rights,” he says.
“I often see the frustration of employers, but it's also understandable why employers are expected to customize their accommodation for those who are protected by human rights legislation.”
“Employers should pay as much attention to the application of policies as they do to policy design - it's not easy when accommodation is involved, it's got to be customized to a certain extent.”
