Requested vacation be converted to sick time
Three registered nurses who worked at Toronto’s Sunnybrook Hospital requested the employer convert vacation leaves to sick time off after each experienced health problems.
Sara Lee scheduled a four-week vacation to begin April 28, 2015, but the day before she went to her doctor after experiencing swelling in her feet.
She was scheduled to take a maternity leave after her vacation.
Her doctor recommended Lee stay off her feet for the next four weeks to reduce the swelling, and said she was not fit to work.
Tatjana Milenkovic was off work due to shoulder pain from June 25, when a scheduled vacation was to begin Aug. 24.
She ultimately remained off work until Sept. 16.
Her doctor wrote a note Aug. 5 that said she was unfit for work. Milenkovic had a cruise vacation scheduled, but on the advice of her physician, she stayed home and continued physiotherapy and drug treatment.
She returned to the job Sept. 16, working modified duties, and was back at Sunnybrook on a full-time basis on Oct. 12.
Rita Neumann had elbow pain on May 6 and the next morning she also had a migraine headache and hand numbness.
She remained off work the next few days and saw her doctor, who diagnosed tendonitis and recommended she not work until June 1.
Neumann returned to work on June 1 and filed a grievance June 15, after a request to convert vacation days to sick leave was denied.
The union, Ontario Nurses’ Association, argued the nurses all experienced “serious illness” as was specified in the collective agreement and, therefore, vacation time was not being enjoyed and the employees were not able to work in any case.
The employer argued that the nurses were not seriously ill and could have pursued modified work, which it said is often offered in other circumstances.
Arbitrator Jasbir Parmar upheld the grievances for Milenkovic and Neumann, but dismissed Lee’s case.
“I find that even if Lee’s condition was an illness, it was not a serious one. The swollen feet were only painful when she walked. The only treatment she required was to keep her feet elevated and use ice,” said Parmar. “A reasonable person would not consider this a serious illness.”
With respect to Milenkovic, “her pain was so severe that she was prescribed narcotic medication, and muscle relaxants which made her groggy. She needed help with basic self-care, such as dressing and showering,” said Parmar.
“Milenkovic had been advised by her doctor not to proceed with her planned travel on a cruise during this period but rather continue with her medication and physiotherapy. Milenkovic also indicated she still required assistance to dress herself during this period. She also continued to take the narcotic and muscle relaxant medications throughout this period.”
Milenkovic’s time off from Aug. 24 to Sept. 7 was allowed to be converted to sick leave.
But Neumann’s case was a bit more complex, according to Parmar.
“There is no evidence upon which it could be concluded that it was the doctor’s view Neumann needed to remain off work for the entire period.”
“Based on the specific circumstances of Neumann’s medical care, opinion and treatment and her activities during this period, I accept that on May 11 her condition was serious. However, the evidence is insufficient to conclude that her condition was still serious by May 19,” said Parmar.
Neumann’s sick leave was ordered converted but only for May 11, ruled Parmar.
Reference: Sunnybrook Health Sciences Centre and Ontario Nurses’ Association. Jasbir Parmar — arbitrator. Brian Smeenk for the employer. Sandy Donaldson for the employee. May 29, 2017.
