accommodation

AUFA Grieves Sick Leave Denial

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AUFA is currently pursuing a grievance on behalf of a member whose sick leave has been unreasonably denied.

AUFA does not normally discuss the content of individual grievances. With the permission of the member involved, AUFA is making an exception because of the implications of this grievance for all members.

Background

In the summer of 2018, a member’s partner was diagnosed with a second instance of cancer. As a result of this diagnosis, the member developed a serious, stress-related illness. The member’s doctor put the member on sick leave during the autumn of 2018.

In late 2018, the member began to recover from the illness and sought a graduated return-to-work (RTW). When the RTW was requested, AU’s Employee Health Coordinator Darren Schmidtke requested:

...a medical note from [the member’s] doctor indicating any limitations/restrictions or [the member’s] return to work, what [the member’s] return to work would look like (days of the week/hours of the day) and the duration of such.

The member’s doctor provided a note indicating the member could return to work 2 days per week with flexible hours from January 8 to February 8. There were no restrictions on the member’s duties. The member returned to work on January 8.

The member was then notified that HR wanted to speak to the member about the doctor’s note. Sensing something was amiss, the member sought AUFA representation.

First Doctor’s Note Rejected

Article 16.5.4 requires members provide “satisfactory proof” of sickness to qualify for sick leave benefits. In a late January meeting (as the RTW was wrapping up), HR indicated it did not find the doctor’s note adequate (despite the note including the information requested in December).

HR also suggested that the member was not sick, but rather was using sick leave to provide compassionate care to the member’s partner. While the member did provide care for the member’s partner, the member’s medical leave was related to the member’s own illness.

 Schmidtke subsequently asserted:

The medical note in question indicates that [the member] is able to perform all aspects of work functions. It does not provide any reasoning for why days must be flexible, any indication of ongoing medical treatment or support or expected duration of this medical concern or any reasoning why the employee is unable to work the remaining 3 days of the week. It also does not indicate whether the employee is able to work from [the member’s] office or should be working from home.

The note did, in fact, indicate a duration (to February 8). Schmidtke also overlooked that the note did not identify any restrictions on the location of work (the member teleworked during this time, in consultation with the member’s supervisor).

 The other issues (reasoning and treatment) were not part of Schmidtke’s original request and, in AUFA’s opinion, are not information the employer requires to determine if the member is sick or not (and thus entitled to benefits and accommodation). Rather, the note itself comprises satisfactory proof of sickness. In the end, the member agreed to get a second, more detailed note from the member’s doctor in the hoping of avoiding a confrontation that would aggravate the member’s illness.

AU Interferes with AUFA Representation

 AU’s Abilities Management Policy allows AUFA members to request AUFA representation during a RTW accommodation. Some AUFA members seek representation because: (1) they are unaware of their rights; and, (2) they are not able to effectively advocate for themselves (due to the effects of their illness).

After the member agreed to get a second note, AU sent the member the form it wanted filled out. AU cut AUFA out of this communication. When confronted with this denial of representation, Schmidtke indicated:

The university will not share or discuss an employee’s sensitive medical information with anyone except the employee, or with members of the Human Resources team (as required).

The difficulty with Schmidtke’s statement is that the email contained a blank form (i.e., there was no medical information being shared).

Second Note Rejected; Vacation Time Goes Missing

The member provided a second note from the member’s doctor that contained a high-level overview of the symptoms of the member’s medical condition that limited the member’s ability to work full-time from January 8 to February 8.

Coincidentally, the member also queried the member’s available vacation time for 2018/19. The member found that 14 days of vacation leave were missing. Examining the time sheets, the member found that Schmidtke had been docking vacation leave instead of sick days during the member’s return to work. This vacation-leave docking was done without any notice to the member.

 (AU is permitted to use VT to cover periods of time when a member has exhausted sick leave benefits under Article 16.4.6. In this case, the member had not exhausted sick leave benefits. Rather, sick leave was being denied because AU asserted that two doctor’s notes were (somehow) not satisfactory proof of sickness).

AU then rejected the member’s second doctor’s note. It also refused to return the vacation leave, with Schmidtke asserting:

At this time, the vacation days will not be returned to you, as you accepted the remuneration and have access to a pay stub which would have shown the details as to how you were paid over this time period.

However, if your preference is that you want to have your vacation days reissued, please contact your HR Advisor, Seona Noseworthy, and arrangements can be made for you to reimburse AU for the Vacation days paid out to you, and we will have those days added back to your vacation bank.

Schmidtke’s assertion that failing to instantly dispute time sheets (which Schmidtke altered and submitted without notice to the member) somehow negates the grievance is incorrect. There is no requirement for AUFA members to instantly dispute errors on their time sheets. Failing to do so does not mean a member has accepted a violation of the contract.

The Grievance

AUFA grieved the theft of the 14 days of vacation time as well as the denial of the member’s representational rights. AUFA’s settlement offer was the return of the 14 days plus an agreement to allow AUFA representation of members as per AU’s own policy.

The reasons for advancing this grievance are:

  1. The member has lost 14 days of vacation pay (>$5000).

  2. AU is unreasonably interpreting “satisfactory proof” of sickness.

  3. The effect of the vacation loss is discrimination on the basis of disability.

  4. AU is interfering in AUFA’s representation of sick members.

Unusually, AU responded to both the informal and formal steps of the grievance in 2 days each. AU normally takes the full 15 and 10 working days for these steps respectively. The grievance (filed with HR Director Charlene Polege) was denied at both steps. A final effort to the settle the grievance with President Fassina (who is the executive officer in charge of HR) was also unsuccessful.

AUFA is currently advancing this grievance to arbitration. At arbitration, AUFA will also be also seeking damages for the violations of the member’s human rights and representational rights.

The Lessons

The grievance suggests several conclusions of relevance to all AUFA members:

  1. You cannot trust HR. The job of HR is to advance the employer’s interests (which is usually saving money). HR is not there to support you or administer the collective agreement in an even-handed manner (although, sometimes, that can happen).

  2. You need representation in accommodations. AU has recently developed a pattern of poorly handling accommodation and return-to-work issues. You are entitled to (and should seek) representation during any accommodation discussions, if only so you have a witness. You should also record all discussions in writing.

  3. You should check your time sheets. This grievance is not the only instance of AU altering time sheets with no notice to AUFA members. If you have been on a sick leave recently, you should check your time sheets to ensure their accuracy. If you find a discrepancy, contact the AUFA office by phone (780 675-6282) or email (aufahq@athabascau.ca)..

  4. You should (if possible) decline graduated RTWs. The purpose of gradually returning to work is to give you time to finish healing while adjusting to work again. AU’s tendency to hassle members on RTW suggests that, if your doctor gives you the option of a graduated RTW or staying off sick until you can return to work full time, you should seriously consider staying off sick to avoid making yourself a target. You may wish to print off this blog post and show it to your doctor if the topic comes up.

  5. If your spidey-sense tingles, contact your union. AU is much more aggressively managing the employment relationship (e.g., we’ve had 14 discipline cases in the same time period in which we normally have only 1). You are entitled to consult your union about employment issues. Such consultations are confidential and can be made by phone (780 675-6282) or email (aufahq@athabascau.ca).

  6. AU does not walk the talk on its I-Care values. While university administrators talk about integrity and respect, they do not live up to these values. Denying an obviously sick employee with two doctor’s notes (and whose partner also has cancer) access to sick leave and then stealing the member’s vacation leave without notice is despicable behaviour. Senior administrators did not correct this behaviour when given the chance. How is that acting with respect and integrity?

  7. Company doctors are bad news. During collective bargaining, AU proposed new language allowing it to send members to see company-appointed doctors at HR’s discretion. Company doctors exist to save employers money by denying worker sick leave entitlements. This grievance demonstrates why AUFA should never agree to company doctor language.

 Bob Barnetson, Member

 AUFA Grievance Committee