Arbitrator finds Hospital Sick Leave Policy Discriminatory

In a recent arbitration decision, Ontario Public Service Employees Union, Local 464 v Ottawa Hospital, Arbitrator Mary Ellen Cummings found that the Ottawa Hospital’s application of its short-term sick leave benefits discriminated against employees with chronic disabilities, contrary to the Human Rights Code. The collective agreement language at issue in the case is common throughout most of the hospital sector in Ontario, and this decision sets an important precedent for how absences due to chronic illnesses must be handled in the province.

Background

The case related to sick leave benefits under the Hospitals of Ontario Disability Income Plan (“HOODIP”). Under HOODIP, employees have up to 15 weeks of short-term sick pay benefits for each period of absence. Article 16.03 in the Collective Agreement states: “No sick pay benefit is payable under HOODIP for the first fifteen hours of absence for the sixth and subsequent period(s) of absence in the same fiscal year”. The Ottawa Hospital applied this rule such that any absences separated by three weeks or more were treated as distinct “periods of absence”, even if the absences were all due to the same chronic illness. The Ontario Public Service Employees Union filed a policy grievance against the Hospital, arguing that this interpretation of “period of absence” discriminated against employees who have chronic illnesses that periodically reoccur (e.g. migraines, Crohn’s Disease).

Arbitrator’s Decision

The Arbitrator found that the use of a three-week gap to identify distinct periods of absence had an adverse impact on employees with chronic illnesses compared to other employees receiving sick leave benefits. Employees with frequent, short absences due to a chronic illness will reach their sixth and subsequent “period of absence” more quickly than other employees, due to the nature of their disability. Treating these absences as a “new ailment”, simply because they were separated by three weeks, failed to address the circumstances of employees with chronic illnesses.

Arbitrator Cummings further found that this discrimination was not justified as reasonable and bona fide. She rejected the Hospital’s argument that it would be too onerous to determine whether absences were due to a chronic disability, holding: “looking at the individual needs of employees with disabilities and determining to what extent accommodation is required is the minimum required of all employers under the Code.”

The grievance was allowed, and the Hospital was directed to stop counting absences separated by more than three weeks as a distinct period of absence when the employee has a chronic illness. The Arbitrator further directed the employer to look at absences of employees with chronic illnesses and determine whether the employee can be accommodated, and if so how. She emphasized that accommodation may take many possible forms, and so a single remedy would be inappropriate.

This Award sets an important precedent, not only for collective agreements in the hospital sector with similar language, but also more broadly for treatment of employees’ absences when they are due to a chronic, recurring illness. Arbitrator Cummings’ decision provides strong confirmation that there is not a ‘one size fits all’ approach to managing employees’ attendance, and employers must look at each individual’s circumstances and needs.

The Union was represented by Wassim Garzouzi and Amanda Montague-Reinholdt from Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.