LCBO worker worried about ‘risk of COVID exposure'
An Ontario worker’s alleged anxiety over working with the public during the pandemic was not serious enough to warrant using sick days for a year until his retirement, an arbitrator with the Ontario Grievance Settlement Board has ruled.
The worker was employed with the Liquor Control Board of Ontario (LCBO), Ontario’s alcohol distribution and retail Crown corporation, as a permanent full-time store manager in Deseronto, Ont. He joined the LCBO in 1982 and retired on Sept. 16, 2021.
The collective agreement for LCBO employees included a sick leave provision that stipulated that employees were required to provide a certificate from a legally qualified medical practitioner for more than five days of paid sick leave. The LCBO also had the discretion to request such a certificate for an absence of less than five days.
The LCBO also had a sick leave policy that set four conditions for an absence of longer than one week: the employee must be completely unable to perform the essential duties of their job, be under appropriate medical care and treatment, comply with all reasonable treatment recommendations, and maintain regular contact with the LCBO and/or the union regarding any changes or requests for information.
A worker’s failure to support a 14-month medical leave constituted job abandonment, the Ontario Grievance Settlement Board ruled.
COVID-19 anxiety
In August 2020, the worker told his district manager that he was going to take sick leave when he returned at the end of August. He said that he felt anxiety from working during the COVID-19 pandemic and it was getting worse.
The district manager told him that he would need a letter from a doctor and he had to be under that doctor’s care. They met on Aug. 6 and, according to the manager, the worker asked her how he could use a year’s worth of sick leave starting in September because he didn’t intend to return to work and he had enough sick days to take him to retirement.
The manager told the worker that he couldn’t use sick leave credits unless he was actually sick, and the worker asked if he could claim to be suffering from anxiety from COVID-19. She asked him if he was actually stressed from the virus and the worker said he was not with a “smirk on his face,” according to her.
The worker denied telling the manager that he wasn’t stressed and argued that he had no reason to admit to something like that when he wasn’t close with the manager. He claimed that his intention was to give the manager advance notice so she could make scheduling adjustments.
A employer’s request for more medical information that delayed an employee’s return to work wasn’t discrimination, the BC Human Rights Tribunal ruled.
No sick leave before vacation
In the two weeks before his vacation on Aug. 21, the worker didn’t take any sick leave or try to modify his work hours. This made the LCBO suspicious, since he had never raised the issue of COVID-19 anxiety or sought accommodation before and, because he didn’t take any sick days, he had enough to run from the end of his vacation until his retirement in September 2021.
On Sept. 8, the worker provided a note from his family doctor that stated that he understood the worker was due to retire in 2021 and he had expressed anxiety about COVID-19 because of his work duties. The doctor said that he thought it was reasonable for the worker to use his remaining sick days to avoid exposure to COVID-19 at work.
The worker filed a non-work-related referral form with the LCBO’s third-party sick leave plan administrator and he was placed on sick leave pending the outcome of the evaluation.
In early October, the worker’s doctor faxed a physician report that said that the worker had “anxiety due to the risk of Covid exposure” and he had been referred to mental health counselling. He recommended that the worker use his available sick days as part of the recommended treatment plan.
On Oct. 13, the sick leave administrator rejected the worker’s medical evidence as not supporting a medical leave.
An employer met its duty to accommodate with the information it had, despite the worker’s disenchantment with the result.
Psychiatrist’s report
A month later, the worker’s psychiatrist sent a report to the sick leave administrator stating that the worker had told him he would retire in 2021 and he was getting anxious about going to work. He noted that the worker had increased anxiety since the start of the pandemic and the worker hoped that he would be able to stay off work until his retirement, although he didn’t think the worker’s recovery would last that long.
In December, the psychiatrist sent a test result that indicated that the worker was “mild to moderately depressed,” but the sick leave administrator maintained that the medical information did not support that the worker was unable to work with some form of accommodation.
The worker participated in four counselling sessions through the Employee Assistance Program (EAP) in early 2021 but then discontinued his treatment. The counsellor determined that he suffered from mild depression.
The administrator continued to deny the sick leave and the union filed a grievance, arguing that the worker provided sufficient medical evidence to support his sick leave and denial of the leave violated the collective agreement and the Ontario Human Rights Code.
Documentation not sufficient: employer
The LCBO contended that the medical documentation provided by the worker did not establish that he qualified for sick leave and the worker was motivated by a desire to use sick leave to bridge himself to retirement.
The arbitrator found that the worker’s medical documentation did not establish that he was unable to perform his duties because of anxiety from working during the pandemic and was not entitled to sick leave under the collective agreement.
The arbitrator noted that the doctors’ notes did not indicate that the worker ever discussed the duties of his position and how his anxiety affected his ability to carry out those duties with his doctor or psychiatrist. The documentation also indicated that his symptoms were mild and his anxiety may not have been as severe as he claimed, the arbitrator said, noting that the psychiatrist didn’t think the worker would need all his sick days to recover.
The arbitrator also noted that all the medical practitioners and counsellors mentioned that the worker’s goal was to use his sick leave until he was eligible for retirement, which meshed with the district manager’s account that the worker said that in the meeting with her.
The arbitrator found that the lack of an active treatment plan supported that idea, as he only took four counselling sessions and didn’t continue to see the psychiatrist. Other than the test results showing mild anxiety and depression, there was nothing indicating that the worker needed to be off work for a year until his retirement, said the arbitrator in dismissing the grievance.
