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

Labour & Pop Culture: Out of Work

This week’s installment of Labour & Pop Culture is “Out of Work” by Gary U.S. Bonds. Written by Bruce Springsteen, this song revived Bonds’ career and the lyrics remain surprisingly (and disappointingly) relevant 36 years later.

8 A.M., I'm up and my feet beating on the sidewalk
Down at the unemployment agency, all I get's talk
I check the want ads but there just ain't nobody hiring
What's a man supposed to do when he's down and

Out of work
I need a job, I'm out of work
I'm unemployed, I'm out of work
I need a job, I'm out of work

I go to pick my girl up
Her name is Linda Brown
Her dad invites me in
He tells me to sit down
The small talk that we're making
Is going pretty smooth
But then he drops a bomb
"Son, what d'ya do?"

I'm out of work
I need a job, I'm out of work
I'm unemployed, I'm out of work
I need a job, I'm out of work
Yeah, yeah, yeah

Hey, Mr. President, I know you got your plans
You're doing all you can now to aid the little man
We got to do our best to whip that inflation down
Maybe you got a job for me just driving you around

(I'm out of work)
These tough times, they're enough
To make a man lose his mind
(I'm out of work)
Up there you got a job but down here below

I'm out of work
I need a job, I'm out of work
I'm unemployed, I'm out of work
I need a job, I'm out of work

Ooh, I'm out of work
I'm out of work
I'm out of work
I'm out of work
I'm out of work
I'm out of work
I'm out of work
I'm out of work

-- Bob Barnetson

Farm injury data supports mandatory safety rules and injury compensation

(This post previously appeared on the Parkland Institute blog.)

In 2016, workers’ compensation coverage for paid, non-family farm workers became mandatory in Alberta. This change was part of a sweeping and controversial reform of employment law in agriculture enacted by Bill 6 (Enhanced Protection for Farm and Ranch Workers Act) in late 2015. Prior to 2016, workers’ compensation coverage was optional and only about half of agricultural employers enrolled their workers in it.

One effect of this long-standing exemption from workers’ compensation was that comprehensive statistics about occupational injury (which are most often derived from injury claims data) were unavailable for agriculture. We now have two and a half years of claims data available, and this data reveals some interesting things about occupational injury among paid farm workers in Alberta.

The data

The following analysis uses 2017 data (the last full year available) from the Alberta Workers’ Compensation Board (WCB) about the agriculture and forestry industry. (The data for 2018 shows similar patterns but is incomplete.) I have removed from this data set all claims made by workers in logging, timber management, and riding academies as these sub-industries are not agriculture as we commonly understand it. I have also removed two small agricultural sub-industries (agri-tourism and llama/alpaca producers) for which 2017 claims data was unavailable, likely due to small numbers. These industries have an estimated total of five employees, so the effect of their removal is insignificant.

Mandatory coverage makes occupational injuries more visible

Not surprisingly, making workers’ compensation mandatory has increased participation in workers’ compensation for paid farm workers. In 2017, 3,847 employers enrolled their employees in workers’ compensation. This is up from 1,756 employers at the end of 2015, when participation was still voluntary. As of 2017, approximately 11,141 employees had guaranteed wage-loss, medical-aid, and vocational-rehabilitation benefits if they were injured on the job. (Comparator data for 2015 was not available.)

Again, not surprisingly, there was an increase in injury claims by agricultural workers between 2015 and 2017. In 2017, there were 738 injury claims made by farm workers and accepted by the WCB. In 2015, the WCB accepted a total of 339 injury claims by farm workers.

The doubling in claims between 2015 and 2017 is broadly commensurate with the increase in employers who enrolled their employees in workers’ compensation. Prior to 2016, approximately half of farm workers’ occupational injuries would have either been claimed under private insurance or simply not claimed at all (with the costs of the injury absorbed by the health care system and/or workers themselves). Essentially, mandatory workers’ compensation has made the existing level of occupational injury in agriculture more visible.

Claims data still under-reports injury numbers

While mandatory workers’ compensation has made agricultural injuries more visible, it is important to be mindful that workers’ compensation claims represent a minority of all occupational injuries. Research in Alberta has confirmed significant under-claiming of compensable injuries, a trend found across Canada and in other countries.

Workers’ compensation claims are supposed to be filed for injuries that require treatment by a doctor, modified work duties, or time off beyond the date of injury. Other, typically minor, injuries are not reportable.

Province-wide, workers only file claims for only about 30% of reportable injuries. Under-reporting reflects a combination of factors:

• some workers are unaware of their rights,
• some workers don't think their injuries warrant reporting, and
• some workers are pressured by their employer not to report, while other workers fear retaliation for doing so.

Additionally, some injuries—such as occupational illnesses—also have long latency periods, and workers may be unaware that their illness was caused by a long-ago occupational exposure.

Of the 738 accepted agricultural injury claims in 2017, 409 were disabling injury claims (meaning the worker was injured seriously enough to require time off work or modified duties). The remaining 329 claims would entail only medical-treatment costs.

Accounting for unreported disabling injuries in agriculture suggests the true number of injuries is likely to be in the range of 1,200 disabling injuries per year. That is to say, roughly 1 in 9 farm workers is likely going to experience a serious occupational injury each year.

Extrapolating from this number suggests the total number of agricultural workers who experienced a major or minor injury in 2017 is likely to be about 3,750—or about 1 in 3 farm workers. We should be cautious using this number because it is an extrapolation, but it sounds about right. That 1 in 3 farm workers experiences an injury is higher than the Alberta average (which is about 1 in 5), and likely reflects the greater risk of injury in agriculture than in other industries.

The most serious injuries are lost-time injuries (where the worker required time off from work). In 2017, there were 321 accepted lost-time claims in agriculture for a total of 11,821 days of missed work (an average of 36.8 days per injury). The agricultural sub-sectors where the most disabling injuries occurred are those that typically involve working with large animals (e.g., feedlots, beef and hog production, stock yards, and dairy farms).

Implications of mandatory workers’ compensation in agriculture

The decision by the Alberta government to make workers’ compensation coverage mandatory for paid, non-family farm workers has had three significant implications.

First, the high level of injury among Alberta farm workers is now more visible because the main source of administrative data about occupational injuries (i.e., workers’ compensation claims) is more comprehensive. This data broadly mirrors what we see in other provinces in terms of the risk of injury for farm workers (i.e., higher than in most other industries) and the main sources of agricultural injuries (e.g., contact with animals and equipment).

Establishing clear evidence about the dangerous nature of agricultural work in Alberta will be important if the United Conservative Party wins the 2019 election and Jason Kenney follows through with his promise to repeal the Enhanced Protection for Farm and Ranch Workers Act. Such evidence can then be used to bolster a constitutional challenge(using Sections 7 and 15 of the Charter) to excluding farm workers from the ambit of workers’ compensation and occupational health and safety (OHS).

Second, workers are now more likely to get adequate compensation for occupational injuries than they were prior to 2016. While the WCB is not a perfect organization, the benefits it provides to workers are superior to the laissez-faire arrangements that existed under the previous Progressive Conservative government. For example, a 2015 report commissioned by the former PC government revealed private insurance was both unevenly provided and often inadequate in terms of the benefits it provided to injured workers.

Requiring employers to carry workers’ compensation insurance ensures that the cost of injury is being borne by those who are responsible for the injuries, instead of externalizing the cost onto taxpayers and/or workers. At the same time, mandatory workers’ compensation frees employers from additional liability associated with occupational injuries.

That said, under-reporting of injury remains an issue. Additional efforts to make farm workers aware of their rights and the long-term importance of filing claims will be necessary to address under-reporting. It will also likely prove necessary for the WCB to meaningfully address claims suppression by employers.

Third, the high rate of injury for farm workers suggests that requiring employers to abide by Alberta’s Occupational Health and Safety Code (effective December 1, 2018) is a reasonable and necessary requirement. While the application of the OHS Code has been contentious (and in some ways it is under-inclusive), the decision to apply the code represents a significant improvement in protections for farm workers.

The effectiveness of the OHS Code at reducing the number of agricultural injuries will turn upon the vigor of government enforcement. Recent research suggests that only half of Alberta employers are compliant with the most basic OHS requirements. This reflects that employers presently face little risk of being caught breaking the rules and, if they are, little risk of meaningful sanction. Additional enforcement resources will be required.

In additional to meaningful enforcement, it will be necessary for the government to educate farm workers about their safety rights and how to use them. While industry safety associations tend to do a good job in helping employers to understand their OHS obligations, these associations tend to ignore the needs of workers. This educational work will fall to the government and/or community groups.

Overall, despite the near-hysterical reaction to Bill 6, the implementation of mandatory workers’ compensation coverage has yielded significant improvements in injury surveillance and compensation. WCB data also provides evidence that supports the subsequent implementation of occupational health and safety rules. Notable by its absence is any evidence that extending basic workplace rights to farm workers drove even a single producer out of business.

-- Bob Barnetson

Labour & Pop Culture: Unions in SF redux

A few years ago, a colleague and I published an article about the absence of unions in science fiction. A few weeks back, this topic came up at World Con 76 (the annual convention of the World Science Fiction Society) when a friend moderated a panel discussion of authors, including a couple whose books we’d looked at in the article.

Based upon Olav’s tweets, the session was a success, with standing room only and some participants expressing a desire for more sessions with this kind of meaty approach. For me, the tweets provided a nice list of new things to read.

-- Bob Barnetson

Indigenous labour history in Alberta

Over the past few years, the Alberta Labour History Institute has been collecting the stories of Indigenous workers in Alberta. A number of video interviews are now available online.

The most recent edited set of interviews looks at the role of Metis iron workers in building the CN Tower in Edmonton.



There is also a full transcript of the various interviews available that contains a fair bit more detail.

There are also numerous other interviews available.



At random, I listened to Linda Robinson’s very interesting interview about her experiences on the job as a person with a disability and her experiences with the labour movement.

-- Bob Barnetson

Labour & Pop Culture: Rain on the Scarecrow

This week’s installment of Labour & Pop Culture is “Rain on the Scarecrow” by John Cougar. I recently watched a really off-putting documentary on John Mellencamp on Netflix (Plain Spoken) and this was one of the songs that played in the background.

It is written from the perspective of a farmer about to lose the family farm due to mounting debt and the cost-price squeeze. Overall, a pretty haunting song about farming as we head into the harvest season.

Scarecrow on a wooden cross blackbird in the barn
Four hundred empty acres that used to be my farm
I grew up like my daddy did my grandpa cleared this land
When I was five I walked the fence while grandpa held my hand

Rain on the scarecrow blood on the plow
This land fed a nation this land made me proud
And son I'm just sorry there’s no legacy for you now
Rain on the scarecrow blood on the plow
Rain on the scarecrow blood on the plow

The crops we grew last summer weren't enough to pay the loans
Couldn't buy the seed to plant this spring and the farmers bank foreclosed
Called my old friend schepman up to auction off the land
He said john its just my job and I hope you understand
Hey calling it your job ol hoss sure dont make it right
But if you want me to Ill say a prayer for your soul tonight

And grandmas on the front porch swing with a
Bible in her hand Sometimes I hear her singing take me to the promised land
When you take away a mans dignity he cant work his fields and cows
There'll be blood on the scarecrow blood on the plow
Blood on the scarecrow blood on the plow

Well there's ninety-seven crosses planted in the courthouse yard
Ninety-seven families who lost ninety-seven farms
I think about my grandpa and my neighbors and my name and some nights
I feel like dying like that scarecrow in the rain

Rain on the scarecrow blood on the plow
This land fed a nation this land made me so proud
And son I'm just sorry they're just memories for you now
Rain on the scarecrow blood on the plow
Rain on the scarecrow blood on the plow

-- Bob Barnetson

Research: Why do workers take safety risks?

One of the more vexing aspects of workplace injury is when workers appear to disregard safety hazards and protocols and expose themselves to occupational hazards. Employer apologists often weaponize such events by blaming the victim of injuries.

I recently ran across an article entitled “Why Do Workers Take Safety Risks?—A Conceptual Model for the Motivation Underpinning Perverse Agency” that proposes a model by which we might understand worker decision making when faced with dangerous routine and novel tasks. The full text of the article appears to be available online if you want to read it.

The crux of the article is:

This Risk, Agency, and Safety & Health (RASH) model proposes that people willingly expose themselves to chronic injuries via a series of risk-taking processes.

This causal chain starts with personal motivation and over-alignment with organisational purpose (including impression management).

Ideally, that motivation would be moderated by an ability to predict future harm consequences from the task at hand, but that mechanism is weak because it is difficult to predict cause and effect, the consequences are too far in the future, and the opportunities for vicarious learning are few.

The motivation then causes misdirected creativity, hence the development of personally novel ways of solving the problem, albeit with greater risk of harm. Perverse agency then sustains actions that exposure the person to harm.

The paper does focus a lot on workers’ decision making and the underlying motives. But there is acknowledgement that worker decisions do not occur in a vacuum. Instead, workers’ approaches to tasks and safety may be negatively influenced by “over-alignment with organizational purpose” and the reward and cultural structure of the workplace (which are management creations).

Further, the nature of many occupational injuries may retard workers’ ability to grasp the consequences of the behaviour and adjust accordingly. Overall, a thought-provoking analysis of decision-making around safety.

-- Bob Barnetson