An Apple a Day Keeps the Attendance Policy Away

December 2nd, 2014 by

Although the Arbitrator’s decision in Waste Management of Canada Inc. and Teamsters Local Union No. 419 is specific to the collective agreement between the parties, the issue at stake is likely to be of interest to many.

Teamsters Local Union No. 419 (the “Union”) alleged that Waste Management of Canada Inc. (the “Employer”) implemented an unfair and unreasonable Attendance Policy that is a violation of the parties’ collective agreement.

The Employer’s new Attendance Policy states the following:

  • An employee who is absent from work due to illness for three or more consecutive days is required to provide medical certification in order to return to work.
  • Where an absence due to illness is of less than three days duration, the Employer has the discretion to require an employee to present a doctor’s note upon returning to work following the absence.

The Attendance Policy also states that the Employer will not reimburse the employee for any payments made in order to obtain medical certification or a doctor’s note.

The Union argued that the above provisions in the Attendance Policy are arbitrary and unreasonable. The Union argued: “An employee may be off ill with the flu or a cold, for which he or she would not need to see a doctor, but pursuant to the Attendance policy, that employee would  have to go to a physician to get a medical note, and would have to pay for such a note.”

The Arbitrator found that the contested provisions of the Attendance Policy are reasonable.

The Arbitrator found that when an employee is absent for less than three days, due to illness, the Employer does not intend to request a doctor’s note every time. Where an employee is only absent occasionally due to illness, it is unlikely that the Employer will request a doctor’s note. However, this provision in the Attendance Policy allows the Employer to request a doctor’s note from those employees with a pattern or number of absences due to illness.

The Employer’s requirement for a doctor’s note after three days of absence due to illness is consistent with the collective agreement which states that that “any absence for three consecutive days without leave or satisfactory reason may lead to loss of seniority and termination of employment.”

With regard to payment for the doctor’s note, the Arbitrator held that it was beyond her jurisdiction to impose a monetary burden on the Employer when nothing in the collective agreement could reasonably be interpreted as imposing such a requirement.

The Arbitrator concluded that although the Attendance Policy is not a violation of the collective agreement, it is possible that a breach of the collective agreement could be found in certain circumstances if the Employer acts unreasonably towards a particular employee with respect to requesting medical notes.

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