Sick leave not allowed just before vaccine deadline

“Employers should accept medical documentation in good faith, but where the employer does not have sufficient reliable information to satisfy a particular purpose - for example, confirming that the employee was absent due to an illness or injury or assessing whether the employee is eligible for sick pay or disability benefits - the employer should ask for more information to fulfil that purpose in the least intrusive manner possible.”

So says Nhi Huynh, an employment lawyer at Williams HR Law in the Greater Toronto Area, after an arbitrator upheld an employer’s refusal to provide sick leave to a worker shortly after he was going to be put on unpaid leave.

However, employers should be careful in asking for information that they are typically not entitled to, such as an employee’s general medical history, diagnoses, and treatment plans, says Huynh.

Unpaid leave loomed

The worker, a full-time nurse, was hired in 2002 by the Ottawa Hospital to work in the dialysis unit as a weekend worker. In 2007, he was diagnosed with attention deficit hyperactive disorder (ADHD). In 2013, he was diagnosed with retinopathy, a recurring eye condition.

In January 2020, the worker was moved to a regular schedule after the hospital eliminated the weekend position. This caused the worker stress, as the weekend position was suited to someone with ADHD. However, he had not informed the hospital of his medical conditions.

A worker who failed to provide sufficient information supporting his 14-month medical leave constituted job abandonment, the Ontario Grievance Settlement Board ruled.

In the fall of 2021, the hospital implemented a mandatory COVID-19 vaccination policy. On Oct. 19, the hospital sent him a final warning letter advising that he would be placed on unpaid leave effective Nov. 1 if he wasn’t vaccinated.

The worker’s stress and symptoms increased, as he felt he was being harassed by staff and management because he refused to vaccinate. He went off work on Oct. 21 due to an aggravation of his ADHD and retinopathy symptoms. Two days later, he provided a doctor’s note stating that he was “totally disabled” from Oct. 23 to Oct. 30 and he was off work for “medical reasons.”

The hospital paid the worker for the first two days of sick leave, Oct. 21 and 22, but denied further sick benefits.

Under its medical leave policy and the healthcare employee benefits plan, sick benefits were not payable unless an employee provided proof of disability satisfactory to the employer for absences of three days or more. The hospital took the position that the timing of the worker’s absence so close to the vaccination deadline was suspicious and the information that the worker provided was not sufficient to support a long-term absence.

On Nov. 26, the worker provided a second doctor’s note excusing him from work until Jan. 31, 2022, for medical reasons. On the same day, the worker’s family doctor completed an Attending Physician Statement Report (APSR) that confirmed that the worker was totally disabled with “attention deficit and mood dysregulation.” It also stated that the worker was seeking treatment for psychological and ophthalmological conditions.

An Ontario arbitrator upheld the firing of a worker who resisted her employer’s accommodation efforts but had no medical information to back up her resistance.

Employer followed up with treating physicians

The hospital’s claims nurse contacted the worker for consent to speak with his treating physicians for additional medical information, as neither of the doctor’s notes had mentioned ADHD or retinopathy.

The family doctor told the hospital that she was not treating the worker for an ophthalmological condition and couldn’t comment on its disabling effect. When asked, she also said that she couldn’t attest to the validity of the worker’s illness and it was possible that he went off work to avoid the consequences of the vaccine mandate.

The hospital also followed up with the worker’s ophthalmologist, who confirmed that the worker’s retinopathy was not disabling. Given the medical evidence it had, the hospital determined that the worker did not meet the definition of total disability under the medical leave policy.

Despite its suspicions, the hospital’s response to the sick leave claim was measured and cautious, says Huynh.

"When faced with vague medical information that did not allow proper assessment of whether the employee was entitled to sick benefits, instead of dismissing the benefits claim outright, the employer asked for further medical information - in the least intrusive manner possible - to be able to make this assessment,” she says.

The delay in a worker’s return to work due to a request for further medical information was not discrimination, the BC Human Rights Tribunal ruled.

Medical information sufficient: union

The union filed a grievance, arguing that the doctor’s notes and the APSR constituted sufficient medical proof that the worker was totally disabled and entitled to sick benefits. It also argued that the hospital didn’t tell the worker that it would ask his doctors if he might be using his conditions to avoid unpaid leave when it requested his consent to contact them. The hospital “focused on his perceived motives for going off work and did not adequately consider the medical information,” the union said.

The union provided a psychiatric assessment from October 2022 that diagnosed the worker with an adjustment disorder with anxiety, which the worker blamed on his frustration with his unpaid absence and denial of sick pay. The report noted that the worker’s ADHD may have impacted his ability to cope with the workplace changes, but it did not say that the worker was totally disabled from October 2021 to January 2022.

The arbitrator found that the two doctor’s notes provided no information about the nature of the worker’s illness or why his condition was disabling. That could be sufficient for a short absence, but they didn’t provide enough information for a sick pay claim for nearly 15 weeks, said the arbitrator.

The arbitrator also found that the APSR provided more detailed information, but the hospital was entitled to request more information given the timing of the sick leave.

Huynh notes that employers are generally not entitled to additional medical information other than what is needed to verify that an absence is related to an illness or injury, the general nature of the illness or injury, a treatment plan, the expected return-to-work date, and the employee’s restrictions – or any specific information it is entitled to in a collective agreement.

“An exception to this is if the employer has reasonable cause to suspect the genuineness, accuracy, or the quality of the medical information provided,” says Huynh. “Here, the employer was able to point to the reasonable cause of its suspicion - which was the timing of the medical absence two days after the employee was provided with a final warning about not being vaccinated - and the fact that the employee never brought up his health-related issues prior to taking leave.”

An employer didn’t have to accommodate a worker until the worker provided sufficient medical information, the Alberta Human Rights Tribunal ruled.

Employer inquiries reasonable

In addition, the hospital’s inquires to the worker’s treating physicians were reasonable, given its suspicions and the doctors could not confirm that the worker was not trying to avoid the vaccine mandate, said the arbitrator.

“Typically, employers should be careful in asking questions beyond what the employee consented to, due to privacy obligations, and make sure they ask for information that falls within the medical authorization/consent form,” says Huynh. “In this case, the employer providing context around the timing of the worker’s illness and the pending vaccination deadline was found to be relevant given the nature of the worker’s purported illness (mental health), which relies on the subjective reporting of symptoms - however, what is relevant is contextual and this could have gone the other way.”

The arbitrator determined that the worker did not provide sufficient medical information proving that he was totally disabled from October 2021 to January 2022. The grievance was dismissed.

The unfortunate reality is that some workers try to take advantage of the system, but employers should give employees the benefit of the doubt at the start, says Huynh.

“Often, employees don’t know specifically what information is needed, but where there is reason to believe the medical information being provided is disingenuous, inaccurate, or incomplete, the employer does not have to blindly accept it and can ask for more specific information as reasonably necessary to address its concerns,” she says. “If employers are suspicious of the medical information they receive, they should be able to point to why and explain why the medical information is insufficient before asking for additional information.”

See Ottawa Hospital v. Ontario Nurses’ Association, 2023 CanLII 24576.