The grievor was on a short illness leave near Christmas. Between her inability to find a physician to certify her fitness and the insurer’s inability to process the form, her return to work was delayed. The arbitrator found that one-third was the employer’s fault and two-thirds her’s.
When her attempt to return to work following a brief illness was delayed by the employer’s insistence that she be certified as fit to return to work by the employer’s benefits insurer, the worker grieved.
A Certified Health Professional, Mrs. A was employed on a regular part-time basis to operate health clinics for students. Mrs. A travelled to schools on her own and set up clinics, which would usually last one day.
On December 7, 2006, Mrs. A became ill and left work in the middle of the afternoon. Aware of the difficulty of securing an appointment with her family doctor, Mrs. A went instead to a walk-in clinic. The clinic doctor advised Mrs. A to take a week off work. She was given a note to that effect, stating that she would be fit to return to work on December 14.
Mrs. A informed her employer of her status via voice-mail. She also faxed the doctor’s note.
When Mrs. A dropped her doctor’s note off at the office the following Monday, she was given forms from the employer’s disability insurance carrier.
Mrs. A was told by her employer that before she could return to work, she was required to submit the insurance carrier’s Attending Physician Statement (APS) form.
When Mrs. A was informed by her specialist at a previously scheduled appointment that he could not complete the APS form, she returned to the walk-in clinic on December 13.
However, Mrs. A was not able to see the same physician again until December 18 and the APS was not completed until December 27. The APS, which was modified to reflect the passage of time, now said that Mrs. A was fit to return to work on January 2. The completed APS form arrived at the insurer on December 29 but it was not assessed until January 3. On January 4, the employer phoned Mrs. A and told her that she should return to work immediately. Mrs. A complied.
Lost wages
The Union grieved, arguing that the employer was obliged to compensate Mrs. A for seven and-a-half days lost wages.
The union argued that the referral to the insurer was inappropriate and unreasonable and that the employer was therefore responsible for preventing Mrs. A from returning to work on December 14.
While technically the collective agreement outlined how the insurer might advise the employer on an employee’s fitness to return to work with a view to determining an employee’s eligibility for benefits, the Arbitrator said that the employer’s Management Rights allowed the employer to consult with the insurer with respect to an employee’s fitness to return to work.
The employer’s conduct was not unreasonable, the Arbitrator said. The organization had a history of significant long-term disability claims and the employer was taking action, through its insurer, to intervene early to reduce long-term disability.
Moreover, Mrs. A had a history of stress leave absences, including a fairly long absence in 2005 that involved a graduated return to work.
Employer concerns reasonable
“I find that the Employer’s concerns for the Grievor’s fitness to work fell within the range of reasonableness, despite the very short duration of the Grievor’s absence, and the medical note that she was fit to return,” the Arbitrator said.
When Mrs. A went on sick leave on December 7, she accepted the responsibility of establishing that she was fit to return to work. In the circumstances — given her medical history — it was not unreasonable for the insurer to request more than the pro forma doctor’s note supplied by the doctor from the walk-in clinic, the Arbitrator said.
“The conclusion to be drawn … is that [the insurer] (and therefore the employer) was not to blame for the failure to pay the Grievor until it had the information of the medical reasons for her absence and of her fitness to return to work. It obtained this information on December 28, 2006.”
However, the Arbitrator said, Mrs. A should not lose income for the delays that prevented her from returning to work promptly after December 28. “[T]he employer must bear responsibility for the delay occasioned by the Employer’s process.”
The grievance was partially upheld. The employer was ordered to pay Mrs. A for her loss of earnings on January 2, 3 and the half-day on January 4.
Reference: Renfrew County District Health Unit and Ontario Public Employees Union, Local 642. Christopher J. Albertyn — Sole Arbitrator. Susan Ballantyne for the Union. Lynn H. Harnden for the Employer. July 5, 2011. 33 pp.
