2. We should start with the fundamental condition for the employer to have the right to insist on a medical certificate as a precondition for granting sick leave. For most collective agreements, the employer`s right to adopt such a requirement is explicit. If a collective agreement is silent on this point, the employer could successfully argue that its remaining administrative rights (i.e. all rights that are not altered by the language of the collective agreement) allow it to require proof of illness. If a collective agreement (as some do) provides that the employer can only require a medical certificate after so many days of absence in a given year, the employer`s right would be limited. 3. In order to assert the right to sick leave, many collective agreements require a worker to satisfy the employer “… this condition, in a manner and on a date set by the employer.” This gives the employer the absolute right to require certification of full sick leave (in good faith) unless there is an additional language that amends that right under certain conditions. Regardless of these broad powers, each request for leave must be considered. (1) A worker`s right to privacy must be taken into account by the employer`s right to provide the right to benefit under the collective agreement (for example.B.
sick leave with pay) or an employer`s obligations under the applicable law (for example). B health and safety legislation or human rights legislation). 5. If necessary, a medical certificate would generally be sufficient to support an application for sick leave with a salary. However, a medical certificate does not guarantee an automatic right to leave unless the collective agreement is explicit on this point. As has been found in many cases, particularly those involving concerted action, a medical certificate is not “Holy Scripture” because their authors are fallible and can be deceived. 20. Leave for a worker`s medical and dental appointments may be supported by an explicit language in the collective agreement. Or depending on the nature of the illness or the state of health at the time of discharge, the application may be covered by the sick leave plan.
If the agreement is silent with respect to a worker`s medical or dental appointments, access to leave may fall under a general provision of “other leave with or without pay”. In most cases, the application of such a clause is left to the employer`s discretion. 22. Most collective agreements provide for an advance on sick leave credits when a worker does not have or does not have credit to cover sick leave with a salary. If the provision states that it is “left to the discretion of the employer” and is not qualified to exercise its discretion, the employer`s discretion is considerable. To intervene in an employer`s decision, an arbitrator would have to find evidence of bad faith on the part of the employer or a lack of rationality so blatant and obvious that it can only be attributed to bad faith. If the agreement contains this type of discretionary language, there is no vested right to an advance on sick leave credits on the basis of past practice, the employer is not required to declare in advance the future refusal in advance and evidence of a difference in treatment between the workers may not be sufficient to complete the test of “bad faith”. 11. Employers are required to protect the health and safety of their workers.
For example, the Canadian Labour Code states, “Every employer must ensure that the safety and health of any person employed by the employer is protected.” Many collective agreements also contain similar provisions.