Arbitration Award: COPE 378 v. ICBC (HR187 – Short Term ...

BULLETIN TO MEMBERS
February 2, 2010
Arbitration Award: COPE 378 v. ICBC (HR187 – Short Term Disability Form Grievance) (Burke)
unreported, January 31, 2010
ICBC has for some time sought to make changes to the HR187 Form that is used for sick leave. The
Union has consistently opposed those changes, and after months of wrangling over this issue, ICBC
relented considerably on the changes it initially sought to make, and the Union agreed to certain
changes, leaving 8 questions which ICBC insisted on adding to the Form, that the Union opposed.
On Sunday (January 31, 2010), an Arbitration Award was issued, which addressed the Union’s
objection to those 8 questions. The Arbitrator concluded that all 8 questions could not be
introduced to the Form as proposed by the Employer, as they were inconsistent with employee
rights to privacy and previous arbitration awards on these issues. Specifically, the Arbitrator
concluded that the Employer was not entitled to impose any of the following questions in the HR
187 Form:
1. Dates of subsequent visits.
2. Without disclosing the diagnosis, please describe the objective findings that
substantiate the nature of the illness or injury: (If more than one illness or injury,
please describe each).
3. Has your patient been prescribed a course of treatment for the medical condition(s)
rendering him/her unable to attend work?
4. If no course of treatment has been prescribed, has a course of treatment been
recommended for this person to follow related to the medical condition rendering
him/her unable to attend work?
5. If a course of treatment has been prescribed or recommended, has your patient
followed the prescribed or recommended course of treatment? Yes/No
6. Specialty of physician completing the HR187.
The Arbitrator further concluded that the Employer must rephrase the question “Date illness began
or symptoms first appeared: M/D/Y,” to “Date illness began or symptoms first appeared for this
current absence: M/D/Y;” and that the Employer must rephrase the question “Date of first visit for
this absence: M/D/Y” to “Date of examination for current absence.”
ICBC’s Reaction – February 1, 2010 Notice to Employees re Care Management
Following its lack of success on the changes that it sought to make to the HR187 Form, ICBC issued
a notice to employees on Monday (February 1, 2010) in which it advised that “managers are no
longer required to send an Occupational Health Fitness Assessment form (the HR187) to employees
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who are absent on sick leave” and that instead, the Employer will have its “Return to Work team”
contact employees on sick leave.
The Union is very concerned that the Employer may be attempting to evade the restrictions placed
on it by the Arbitration Award. In bypassing the HR187 Form, and contacting employees directly
as proposed, ICBC may seek to elicit the type of information that it was prohibited from seeking
under the Arbitration Award. By posing its inquiries verbally rather than committing them to
writing, the Employer makes it difficult, if not impossible, for the Union to ascertain what inquiries
are being made of its members, and to hold the Employer accountable for those inquiries.
The Employer states in its notice to employees that its new process will: “allow the Return to Work
team to provide assistance to employees in obtaining referrals to specialists for assessments or
treatments, and to arrange for assistive devices.” The Employer advanced the same reasoning in
seeking to impose its changes to the HR187 Form. The Arbitrator found that the Employer’s interest
in wellness initiatives to prevent illness, to assist employees in maintaining good health and
returning to work earlier, do not override employees’ legal rights to privacy regarding their medical
information (Award, pp. 27-28). We are aware of no circumstance in which ICBC has provided
assistance to an employee in obtaining referrals to specialists for treatment; and it is the Union’s
position that the HR187 Form gives the Employer ample information to arrange for return to work
and accommodation. If an employee requires an assistive device, the employee’s physician is able
to express that in the comments portion of the HR187 Form, or the employee may simply ask for it.
The Employer’s proposal to contact employees directly with interrogatory phone calls regarding
their medical information is very troubling. In particular, the Union is deeply concerned with the
Employer’s stated intention that “the Return to Work team will also be able to work more closely
with the employee’s own medical team in preparing for return to work.” This Employer
interference with the patient-physician relationship and an employee’s treatment is precisely the
type of intrusion that the Union has consistently sought to prevent.
What Can You Do
If ICBC contacts you while you are off sick, we recommend that you:
1. Let the caller know when you will return to work;
2. Ask the caller to put any questions they may have in writing, or ask the caller to list
the questions for you, so that you can write them down; and advise that you will
respond once you have spoken to your Union;
3. Take the name and position title of the caller; and
4. Call the Union right away to review the questions posed, COPE, Local 378 (604-
299-0378).
Your input will allow us monitor this carefully.
David Black
COPE 378 Vice President
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Jaime Zygmunt
Senior Union Representative
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