There have been recent changes in practice which compel us to send out new information relating to sick leave Collective Agreement provisions and practices. There is a long history of arbitrated decisions about sick leave. This is an area in which the Union works to ensure that the Company does not violate the Collective Agreement and attempts to change long-standing practices. Most recently we were required to file numerous policy grievances. To view our recent bulletins issued, please click on the links below:
We have had historic arbitral decisions which gave us clarity and guidance on some practices. The Union filed a policy grievance in 2010 relating to procedures while booking off. Arbitrator William Kaplan provided an award which was favourable for the Union. A copy of Arbitrator Kaplan’s full award (CHQ-10-16) is attached HERE.
The Union grieved Air Canada’s requirement that sick Members stay home and be available to receive a telephone call from Air Canada or risk the removal of pay credits. The Union further grieved Air Canada’s practice of asking Members when they planned to book back on, or whether they planned on booking on for their next flight. Chief Arbitrator Kaplan’s decision was released on November 12, 2010.
Chief Arbitrator William Kaplan’s Decision
Chief Arbitrator William Kaplan allowed the Union’s grievance, deciding that this message could not be delivered to Members by Air Canada and Shepell. He noted that this requirement to be available for the call under threat of loss of credits was “completely inappropriate”, “hardly conducive to the rehabilitation of the employee”, and contrary to the Collective Agreement. Further, Chief Arbitrator Kaplan accepted the Union’s argument that Air Canada is not legally entitled to ask Members whether they foresaw being able to work their next flight. Members who place a 6-hour hold, as well as Members who do not, could no longer be asked this question by Air Canada or Shepell.
Air Canada cannot:
- Require that you stay home when you are booked off to be available to receive a telephone call, under threat of forfeiture of pay credits, or
- Ask you whether you expect to operate your next flight.
Second “Book Off” Decision
Previously, in YVR-09-73, the Union grieved Air Canada’s practice of requiring medical substantiation where a member – who did not have excessive absenteeism, particular attendance patterns, and did not book off after a leave request was denied – booked off from a Sydney flight. Air Canada said that it requested substantiation “due to the high number of book offs associated with the Sydney flights.” In August, following a hearing on this grievance, Arbitrator Kaplan issued a cease-and-desist order. “Blanket Requests” for substantiation are not legally allowed. This means that you cannot be asked to substantiate your book off simply because you booked off during a holiday period, or because a particular flight might have a higher-than-average number of book-offs. Air Canada can ask you for medical substantiation, but the request must be based on your individual circumstances.
Air Canada can ask you for medical substantiation if they determine that you:
- Have a particular attendance/book-off patterns
- Book off following a denied leave request or in circumstances deemed suspicious
- Booked off with less than four hours before departure
The recent development that we speak of above is that Air Canada is now advising those who call in to book off that if their absence is five days or more that they may be asked for a medical note to substantiate their absence. That change completely flies in the face of our previous arbitral awards and we completely disagree with their approach to this. We are grieving this, however in the interim if you are required to provide a medical certificate and want to protect your pay credits, we suggest that you provide one. You can provide it under protest. Please report to your Local Union office any requests for medical substantiation that you deem to be unreasonable. We want to keep track of these instances and include them with our grievance filings.
Please keep in mind that as per the most recent updates to the Canada Labour Code that medical certificates can now be provided by health care practitioners, not only physicians. As per the legislation:
An employer may require that the employee provide a certificate issued by a health care practitioner certifying that the employee was incapable of working for the period of their medical leave with pay. The employer may only require this when the employee has used 5 or more consecutive days of medical leave with pay. The employer must do so in writing and employees must provide the certificate to their employer no later than 15 days after the employee’s return to work. Part III of the Code defines a health care practitioner as a person lawfully entitled, under the laws of a province, to provide health services in the place in which they provide those services.
What Medical Information Is the Company Entitled to Ask For?
In our view local management is entitled to request a note to substantiate the use of sick leave if an established pattern of book off exists based on the individual circumstances of the member. For example: If you book off after your request for a leave was denied, if you book off with less than four hours to departure or if your absenteeism is deemed to be excessive.
These notes need only to state when you were unable to attend work, and when you were fit to return to work, and must be dated during your book off. You should submit the original note from your health care practitioner, clearly marked with your name and employee number, to your local base management within 15 days of booking back on, ensuring that you keep a copy for your records.
The note must be dated during the time of the book off and should cover the entire timeframe of the book off. If you had to pay a fee for the medical certificate, you should also submit an expense form to your manager to be reimbursed.
Article 9.06 of the Collective Agreement States: “9.06 MEDICAL CERTIFICATE – An employee may be required to provide a medical certificate to substantiate any utilization of sick leave. In application of this clause, the Company may require medical certificates for periods of illness of three (3) consecutive days or less. Any cost for medical certification in accordance with this clause shall be borne by the Company”
Summary of Your Rights From These Arbitrations
What If the Book Off Is For 7 days or Longer?
More detailed information may be required for an absence from work of 7 days or longer. Keep in mind that as per Article 9.02 of the Collective Agreement “9.02.02 For the purpose of this Article, “day” shall mean a twenty-four (24) hour period or part thereof”
Medical information should be sent to Occupational Health only and never to your Cabin Personnel Manager.
The Company’s Occupational Health Service (OHS) is only entitled to ask for information relevant to the medical issue causing your book off or preventing your early and safe return to work. They are entitled to the prognosis (i.e. what you can or cannot do) not the diagnosis (the specific ailment which is afflicting you). The request for information must be relevant to the illness causing your absence and be reasonable. For example, if you were booked off due to a broken arm, it would most likely be irrelevant and unreasonable for the Company to request that you schedule an MRI exam prior to booking back on. However, it may be reasonable for them to request a copy of your latest X-ray results, to prove the bone has mended.
If you are in doubt about what medical information you should release to Occupational Health Service (OHS), your doctor should be your first point of contact. He/she is best able to judge if the information requested by OHS is relevant to your return to work. Your doctor is best placed to determine if you are fit to return to your job, and what, if any, your limitations are.
Continuous Book Off
Some members have asked what a continuous book off is. Our newest members are navigating the perils of booking off and we want to ensure that they are aware of this. The process is as follows:
A Continuous Book off is when a member books off, books on, and then books off again without a scheduled duty in between. If the member does not provide substantiation from a health care practitioner to show that the two book offs were for different illnesses, this will be counted as a continuous absence. If and when you do get the substantiation, it should indicate that each book off was due to a separate/different reason.
We know that the last thing any members need is to be pestered when they are sick and trying to get well. The most important thing is that you get well. We hope that this bulletin has provided some guidance. If you have any questions about booking off, we strongly encourage you to reach out to your Local Union office. They are your best advocate and support when navigating this process.
We have had members ask how many sick days members are entitled to. As per the Canada Labour Code, all employees who complete 30 days of continuous service will earn three days of paid medical leave, after which they will accrue one day of paid medical leave per month, to a maximum entitlement of 10 paid days per year. Our Collective Agreement for our Mainline members provides for 12 days of sick leave, which is a greater benefit. There is no ability to “stack” this sick time. This means that we are entitled to 12 sick days annually at Mainline. Our members at Air Canada Rouge have also benefited from this language, and have moved from hours to days, and are given 10 days annually. We trust that this bulletin has answered some of your questions about sick leave. Please reach out if you are unsure about any of this information as we want everyone to feel confident when utilizing their sick leave entitlements.