Union argued implementation would expose doctor-patient privacy
In an effort to cut spiralling costs of worker absence that costs millions of dollars every year, Sunnybrook Hospital recently revamped its attendance support program (ASP).
But arbitrator Paula Knopf ruled that while creating the system was justified, its implementation was flawed and it must be modified.
Sunnybrook hired Anne McIsaac, who designed a new program that called for a Fitness to Work (FSW) form that must be signed by a doctor to explain an absence.
It was supposed to "provide a framework for responding to excessive absenteeism; to provide support and guidance to assist employees who have high absenteeism," said Sunnybrook.
But Service Employees International Union (SEIU) Local 1 grieved the new plan, saying it was "unreasonable" and it could "unduly infringe upon the personal privacy of employees."
The union argued that the FSW form may trigger an invasion of an employee's privacy by asking specific questions of that employee's doctor, calling it "overbroad, over-reaching and unreasonable." SEIU said demanding answers from physicians would interfere with the sacred doctor-patient relationship and may adversely affect a worker's treatment plan.
But the hospital argued consultations with doctors could benefit employees with earlier fulfillment of sick pay or accommodating the illness and ensure that “everything is being done” on their behalf.
But asking for specifics details from a doctor about a patient's treatment — especially before notifying the employee — was unacceptable, said Knopf.
"Seeking such information and offering such interventions goes beyond what is considered permissible, without the patient’s consent."
In some cases, an employee may request assistance from an occupational health and safety (OHS) department when dealing with an illness and it would be beneficial for information about treatment to be shared, she said — but it must come from that employee's request.
The arbitrator took issue with consent as stated on the FSW form: "For the consent to be meaningful, the employee should be advised that additional information is being requested and why it is being requested before the doctor is contacted directly. That will allow the employees to revoke their consent ‘in writing’ if they so choose. To advise employees after the fact makes the ability to revoke the consent academic."
Knopf ordered the wording to be amended to include the provision that the employee would be advised in advance of a request for information from a doctor.
The current implementation of FSW "goes beyond the bounds of reasonableness,” she said.
"The case law is clear that an employer steps over the bounds of propriety and reasonableness when it attempts to engage in the private relationship between an employee and his/her physician."
Knopf ordered changes to be made to the wording so that only general information was received from the doctor, not specifics about a course of treatment.
The union also argued that absences that were mandated by hospital policy (such as a sore throat, aches and pains or fever) must not be used to consider a worker as triggering the absenteeism policy.
Thresholds to trigger attendance counseling meetings were: absenteeism in excess of three incidents or 45 hours in a six-month period for full-time employees; absenteeism of three incidents in a six-month period for part-time employees.
The union argued getting placed into the program was easier than being removed, which was unfair to workers. However, the arbitrator ruled that other ASP programs offer similar inconsistencies and have been accepted into case law. This part of the grievance was rejected.
The arbitrator also said some parts of the FSW form that asked for specifics should be treated with employee-patient privacy remaining paramount.
"In all situations, the managerial discretion should be exercised to seek the minimum information necessary to objectively verify the legitimacy of the absence,” she said.
Reference: Sunnybrook Health Sciences Centre and Service Employees International Union, Local 1 Canada. Paula Knopf — arbitrator. Brian Smeenk for the employer. Aleisha Stevens for the union. July 13, 2016.
