Telephone Calls to Employees on Sick Leave Upheld by Arbitrator

Is a management program to monitor sick leave use by contacting employees at home a legitimate exercise of management authority or a violation of the collective agreement? An arbitrator has recently determined that a policy which authorizes management representatives to telephone employees claiming sick leave is a legitimate exercise of management authority.

In City of Kanata and City of Kanata Professional Firefighters Association, released on February 28, 1996, the Kanata fire department adopted a sick leave policy in response to budgetary constraints. Management focused on sick leave because absent firefighters were generally replaced by firefighters earning overtime, with the resulting costs of leave being unacceptably high.

Previously, employees claiming sick leave would simply call the station and inform whomever answered that they were booking off sick. With the new policy, the Chief or Deputy Chief would call each firefighter who had called in sick. He would note the firefighter’s absence, ask how long he or she expected to be off and whether the fire department could do anything to facilitate an early return to work.

The association grieved the new policy, arguing that it violated the collective agreement which, it claimed, provided a “complete code” for the monitoring of sick leave. Article 8.06 of the agreement required firefighters to provide medical certificates after three consecutive days of illness, or where they had used more than eight days of sick leave in one year. The association made a separate argument that the policy was not a reasonable exercise of management’s rights and had the effect of harassing and intimidating employees. In the association’s view, the policy was motivated by management’s belief that sick leave was being abused, and was intended to discourage the legitimate use of sick leave.

The employer countered that the new policy dealt with matters on which the collective agreement was silent. The new rule was introduced not to police the use of sick leave, which was the function of Article 8.06, but rather to manage staffing to reduce the overtime budget through offers of modified work and the use of less costly means to replace absent employees. The employer noted that no firefighter was disciplined, threatened with discipline or denied sick leave as a result of the new rule.

Arbitrator Stanley upheld the validity of the policy. He found no violation of the collective agreement, agreeing with the employer that it contained no procedure for employees to report being on sick leave. Despite this conclusion, the arbitrator stated that he might have sided with the association had he determined that the policy was driven by an invalid purpose:

“I might still have accepted the Association’s assertion if I could accept that the sole purpose of the policy … was to `police’ sick leave in the sense of ensuring that persons claiming sick leave were sick and not anything to do with notice and information essential to staffing. Unfortunately, I am not able to accept that assertion either.”

The arbitrator went on to state that he accepted that it was necessary for the Chief or Deputy Chief to be directly involved in the process of monitoring absences in order to efficiently staff replacements and avoid overtime costs. The arbitrator also found that the evidence in the case did not bear out the association’s allegations of harassment. He specifically rejected the assertion that it was unreasonable to require an employee to report sick to management personnel rather than to a member of the bargaining unit, or to answer reasonable questions posed by management about the absence:

“I accept that there is some scope for the employer to gather legitimate information about the duration of the absence and the possibility of modified work and that one call for this purpose from a management representative does not offend the employee’s right to privacy.”

Accordingly, the association’s grievance was dismissed.

In Our View

To fall within the scope of management authority, a management-promulgated sick leave policy must be both reasonable and reasonably applied. To be reasonable, the policy must not conflict with the collective agreement, and its purpose must be to serve the employer’s business interests, not to `police’ whether employees are actually sick. The policy must also be reasonably enforced. The result in this case was at least partly attributable to the fact that the arbitrator did not accept that employees had been asked pointed questions about the legitimacy of their claims of sick leave, that their honesty was impugned, or that management’s phone calls were intimidating or harassing.

For more information on this subject, please contact Jacques A. Emond (613) 563-7660, Extension 224.

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