Weaponizing sick leave at Athabasca University

Employers have an obligation to accommodate workers who are unwell or who have a temporary or permanent disability. This obligation is often operationalized in the form of short-term sick leave and modified job duties.

Unionized workplaces often have paid sick leave and contractual requirements to accommodate disabilities. Accessing these rights sometimes requires an employee provide a note from a physician or other health-care professional, stipulating the duration of an absence or the nature of an accommodation.

Employers have little legal right to look behind physician-mandated leave or accommodation. For example, they are not normally entitled to know the nature of the underlying medical condition. And they have limited ability to contest physician-determined medical requirements, such as by making an employee see a company-appointed doctor.

Athabasca University (AU) has recently proposed new and quite aggressive “company doctor” language in its collective agreement with the Athabasca University Faculty Association (AUFA). This language would give the employer to power to mandate non-therapeutic medical examinations by a physician appointed by the employer.

AU’s proposal reads:

16.5.9. a. The University may require that a Staff Member be examined by a physician appointed by the University.

i. in the case of prolonged or frequent absence because of illness or,

ii. where the University considers that a Staff Member is unable to satisfactorily perform the Staff Member’s duties due to disability or illness, or

iii. where there is an indication of misuse of illness leave.

b. Upon request of the Staff Member, a copy of the report of the examining physician shall be sent to the Staff Member’s physician.

c. Expenses incurred under this Clause shall be paid by the University.

Practically, what this means is that:

1. HR could require sick AUFA members to report to a company doctor for a medical examination. 
2. Failure to do so could result in discipline (for insubordination) and possibly a suspension of paid sick-leave benefits or the denial of accommodation. 
3. If AU’s doctor disagrees with the staff member’s doctor’s recommendations, AU would then be in a position to deny the staff member the sick leave or accommodation their doctor deems necessary or force the worker into a third examination to "break the tie".

Being forced to submit to an examination by a company-paid doctor is a profound intrusion into a worker's privacy.

AUFA has been able to identify 1 instance in the past 15 years where the university formally brought up the possibility of mis-use of medical leave. There may be other cases, but none the employer ever brought forward.

What this means is that this proposal does not solve a real and pressing problem facing AU. The current process of staff members providing medical notes from their own physicians or other health-care providers is adequate.

This proposal does increase AU’s ability to harass AUFA members with medical conditions by subjecting them to non-therapeutic medical examinations conducted by a company doctor.

Bluntly, AU is attempting to weaponize the sick-leave and accommodation provisions of the AUFA collective agreement against workers when they are most vulnerable.

The likely (and typically intended) effect of introducing company doctors is to limit workers’ use of their sick leave. Workers subject to AU's proposed provisions are less likely to exercise their rights for fear of being targeted for a visit to the company doctor.

The Alberta Human Rights Commission characterizes examinations by company doctors as follows:

Requiring an employee to submit to an [Independent Medical Examination] by a doctor of the employer's choosing is intrusive. Arbitrators and courts are reluctant to require an examination by someone who is not chosen, or at least agreed to, by the employee.

While AU’s bargaining team has conceded this proposal is “not a hill [it] wants to die on” it has refused to withdraw the language.

This kind of aggressive (and needless) proposal is deeply disrespectful to staff members' integrity (we don't fake being sick or malinger) and privacy. 

And AU’s refusal to withdraw the proposal is contributing to a growing stalemate in negotiations during the parties’ first round of bargaining under strike-lockout.

One has to wonder what the employer’s strategy is here?

-- Bob Barnetson