GSB# 2007-2645

Union# G-126-07-Policy

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587

(Policy Grievance)

Union

• and -

The Crown in Right of Ontario

(Greater Toronto Transit Authority - GO Transit)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Ian Fellows

Green & Chercover

Barristers and Solicitors

FOR THE EMPLOYER

Jason Hanson

Osler, Hoskin & Harcourt LLP

Barristers and Solicitors

HEARING

April 7, 2008.

Decision

The Proceedings

This grievance is a claim that the employer is liable to pay for certain medical certificates that in some cases it is requiring be provided before an employee is permitted to return to work following medical absence. The relevant provisions of the collective agreement are as follows:

B6.08 Medical Certificates

(i) When a Supervisor requires verification, the Supervisor may request an employee to provide a medical certificate from a qualified Ontario medical practitioner for absences of five (5) days or less. Such requests will not be made in a discriminatory manner, and provided that such medical certificate satisfies the criteria set out in Article 6.08, $10.00 will be paid by the employer. There will be no payment for a medical certificate that does not meet the requirements outlined in this article (iii), nor will there be duplication of payment for the same period of illness.

(ii) The Supervisor must make this request during the absence and prior to the employee’s return. If the employee does not abide by this request to produce the medical certificate, then the employee will not receive sick pay benefits for the absence, but will be allowed to return to work providing there are no further extenuating circumstances.

(iii) The medical certification must, as outlined below, state the following information:

a. date the employee was first seen by physician and confirmation that the employee is under doctor’s care;

b. prognosis of return to work date and confirmation that the employee cannot work;

c. for return to work, that the employee is now medically fit to resume his/her full duties.

Under the requirements of the Article, GO Transit will not accept certificates that:

a. are photocopies;

b. do not indicate first treatment date or expected return to work date;

c. are not verified by a legally qualified and licensed medical practitioner of Ontario.

(iv) If the employee was treated by a medical practitioner outside the Province, verification of such medical certificate of sickness or accident must be obtained from a legally licensed Ontario medical practitioner.

(v) When an employee is absent for a period of more than five (5) consecutive work days, he/she shall provide his/her Supervisor with a satisfactory medical certificate. Failing this requirement, he/she will not receive sick pay benefits and will not be allowed to return to work. This protects both the individual from harm and GO Transit from any liability due to further complications of the sickness or injury.

(vi) Part-time employees are not eligible for sick pay benefits, irrespective, this medical certificate criteria still applies. This procedure does not prevent the Employer from taking progressive action to correct such situations as may be necessary.

The employer may require that the employee submit to a medical examination at the expense of the employer, where for reasons of health, an employee is frequently absent or unable to perform his duties.

Payment of benefit is subject to the employee reporting such sickness and following all the correct procedures. Failure to do so, may jeopardize such payments.

The Submissions of the Parties

The union submitted that the scheme of the agreement is that for absences of less than 5 days the employer may request a medical certificate, and, if it does, it will pay $10.00 towards any cost. For absences greater than or equal to 5 days, the employee shall provide a medical certificate at her or his expense. Finally, where employees are frequently absent or unable to perform their duties, the employer may require the employee to submit to a medical examination at its expense. The issue here is that after employees have provided the first certificate, the employer is requiring that some employees have a Functional Abilities Assessment Form (hereafter “FAAF”) completed by their attending physician prior to authorizing her or his return to work. This is a single-sided, check-box form that summarizes recommended work restrictions. The union’s submission is that if the employer wants more medical information, it should pay the costs.

The union relied upon the following authorities: ATU, Local 1587 v Ontario (GTTA/GO Transit) (Medical Benefits Grievance) [2003] O.G.S.B.A. No.57 (Johnston); Brandon General Hospital and Manitoba Nurses Union, Local 4 (1996), 1996 CanLII 20249 (MB LA), 56 L.A.C. (4th) 174 (J.M. Chapman); Thunder Bay (City) and ATU Local 966 (1992), 28 C.L.A.S. 311 (G.E. Phillips).

The employer submitted that the collective agreement clearly sets out that its obligation to pay for medical certificates is limited to $10.00 where it requires a medical certificate verifying an absence of less than five days. If the employer requires a medical examination of an employee who is frequently absent or unable to perform his or her duties it bears that cost. Those obligations do not include a FAAF if required to facilitate an employee’s graduated return to regular duties. The employer submitted that the language of the agreement differentiates between the form of certificate required for less than 5 days and greater than or equal to five days. It has committed to pay $10.00 towards verification of less than five days and it has not committed to any payment of the latter. Indeed the certificate required for absences of five days or more must be “satisfactory” to the employer or there will be no payment of benefits or return to work. Accordingly, that certificate must satisfy the employer that the employee is fit to return to work, either to full or modified duties. The contents of the less than five day certificate, to which it has committed to contribute $10.00, are spelled out by the agreement in such a fashion that the FAAF goes beyond that definition and the cost, therefore, is not borne at all by the employer.

In the alternative, the employer submitted that the collective agreement language does not contemplate the FAAF form. Accordingly, it cannot be required to bear any cost for such a form if it is needed to facilitate a graduated return to work, because it did not agree to that monetary benefit.

The employer relied upon the following authorities: OPSEU Local 255 and Ontario [1997] O.J. No. 533 (Divisional Court); Hamilton Street Railway Co. and ATU Local 107 (2004), 76 C.L.A.S.43, 2004 CLB 4140 (R.L. Levinson); Richmond Manor and BCNU (1997), 1997 CanLII 25070 (BC LA), 61L.A.C. (4th) 427 ((S. Kelleher); Fleet Industries, Division of Ronyx Corporation Ltd.and IAM Lodge 171 (1980), 1980 CanLII 4046 (ON LA), 26 L.A.C. (2d) 24 (J.D. O’Shea); P.G. Bell and IAM Local 1823 (1996), 42C.L.A.S. 203 (Rayner).

Reasons for Decision

Article B6.08 governs the submission of medical certificates to the employer. The union says that if the employer requires detailed information as to whether, and what, modified duties would be appropriate, it should bear the cost of obtaining that additional information.

I do not agree. As noted in ATU and GO Transit, supra, at paragraph 9, “article B6.08 sets out a relatively comprehensive scheme providing for the obtainment by the employer of medical information concerning employees”. That scheme also considers what costs are to be borne by the employer. Article 6.08 (iii) sets out the minimum requirements of a medical certificate required by the employer to verify a short-term absence and return to full duties. Effect must be given to the words chosen by the parties to express their intention. First and foremost, this article gives the employer the right to require a medical certificate from an employee absent for medical reasons for less than five days. The purpose of the certificate is determined by the prescribed content of the certificate set out in B6.08 (iii). It is to confirm when the employee was first seen by the physician, that the employee is under a doctor’s care, prognosis of the return to work date, confirmation that the employee cannot work [until the return to work date] and upon return to work that the employee is medically fit to resume full duties. That is the certificate the employer will contribute $10.00 towards. If further medical information, such as a FAAF, is required because the employee is not fit to resume full duties, the employer has not committed to contribute to the cost under B6.08 (i) through (iv). Indeed, B6.08 (i) specifically sets out that there will be no duplication of payment for the same period of illness. Subparagraph (v) deals with absences of 5 days or more. The employee must provide “a satisfactory medical certificate” in order to be allowed to return to work. “Satisfactory” must be taken to include sufficient information to permit a return to work to full or modified duties. The employer is not obliged to contribute anything to the cost of such a certificate.

Here, the agreed facts include that Mr. Scott Gibson provided a medical certificate to the employer. He was asked if he could return to work to modified duties. He did not know the answer to that question so was asked to obtain a completed FAAF. He was not reimbursed for the cost of that form. The only inference to be drawn is that the certificate neither met the requirements of sub-paragraph (iii) nor was it “satisfactory” with respect to providing information regarding his return to work.

The narrow question then comes down to whether, when the employer asks that the FAAF be completed, it is “requiring that the employee submit to a medical examination at the expense of the employer, where for reasons of health, an employee is frequently absent or unable to perform his duties”. That obligation is set out in the paragraph following paragraph (vi). The union submitted that the employer’s request for a FAAF, after the submission of a medical certificate, is covered by this language.

The employer submitted that this language is only engaged when it specifically requests that the employee submit to a medical examination. It said that it is not requiring or requesting an examination. It is merely asking for further and better information, from the attending physician, relating to a graduated or modified return to regular duties. Indeed, the form itself simply asks for the “date of examination on which this report is based”. It does not require, and is not asking for, a further examination. The employer submitted that the language under consideration authorizes the employer to seek a further specific examination, in the nature of an independent medical examination, outside of the scope of the employee’s treatment, which would not be covered by OHIP. On my reading of ATU and GO Transit, supra, and on my reading of the provision, this provision deals with a physical examination required by the employer, not obtaining further and better information based on previous examinations in order to provide, or consider the suitability of, modified work. The employer’s right to require the employee to submit to a medical examination is an extraordinary provision for the reasons set out in ATU and GO Transit, supra. That case dealt with the issue of whether the employer could unilaterally select the physician to complete the examination. It determined that the language did not go that far. It left open the question of whether the employee could unilaterally select the physician. The following excerpts from that decision are helpful:

9 Both parties acknowledge that the relevant provision in the collective agreement,

article B6.08, provides for two types of medical information or intervention. The first part of the article deals with the provision of a medical certificate in certain specified situations and the latter part of the article calls for an employee to attend at a medical examination, once again, in specific situations. There is no dispute that article B6.08 sets out a relatively comprehensive scheme providing for the obtainment by the employer of medical information concerning employees. There was no dispute that a medical certificate is different from a medical examination and that each is requested and obtained in different circumstances and perhaps for different purposes.

Here, the union submits that the FAAF is tantamount to a requirement that the employee undergo an examination. I do not agree. That language is directed towards a much higher order of medical intervention than the request here for an FAAF from the attending physician. The FAAF being requested is a required addendum to the medical certificate because the medical certificate either does not provide a certification that the employee is fit to resume regular duties or does not provide “satisfactory” information relating to a return to full or modified duties. In the first case, absence less than five days, the employer is only obliged to contribute to the cost of a certificate that certifies a return to regular duties. It is nonetheless obliged to consider accommodation options and any documentation to that effect is at the expense of the employee. In the second case, the employee is responsible for the cost of providing a certificate that is satisfactory with respect to the return to work, either to full or modified duties. Accordingly, the employer is not generally obliged to contribute to the cost of obtaining a FAAF. However, it should be borne in mind that the insistence of the employer upon the completion of a specific template of FAAF may, on a case-by-case basis, indeed “require”, as a matter of fact, that the attending physician complete an examination in order to fill out the form. The resolution of that matter is not before me.

The Decision

The grievance is dismissed.

Dated at Toronto this 18th day of April, 2008.