Short term disability implementation decision

This is the implementation decision of arbitrator Devins’s previous award regarding Short term disability, and the information and forms the employer is entitled to for approval of Short term sick benefits.

We received a decision from arbitrator Devins regarding the short term disability forms and entitlement back in March 2021. Click here to read that decision.

When the employer implemented the new forms we had some concerns about additions to the forms and a few items that were still included, as a result, we requested a new date with the arbitrator to return to argue the proper implementation of the original award.

We were successful in the removal of functional abilities questions, pregnancy related questions and questions specific to prior treatment. The decision, in addition to the original award, provides some real clarity for the parties related to the entitlements of the employer in approving short term disability.

The arbitrator has allowed the employer 60 days to implement her award.

Tim Mulhall, OPSSU Chief Steward

Short term disability implementation decision

PDF version

In the matter of an arbitration:


Ontario Public Staff Services Employees Union (Union and Grievor)


Ontario Public Services Employees Union

BEFORE Reva Devins Arbitrator

FOR THE UNION Sarah Molyneaux McMahon, Molyneaux and Henriquez Counsel for the Union, OPSSU

FOR THE EMPLOYER Mark Mendl Mendl Workplace Law Counsel for the Employer, OPSEU

HEARING October 1, 2021


[1]Two grievances were originally before me, a policy grievance filed by the staff Union, and another filed by an individual member. Both grievances challenged the forms used by the insurer, SSQ, to determine eligibility under the Short Term Income Protection Plan (the “STIPP Forms”), alleging that they improperly required disclosure of confidential medical information. The parties engaged in lengthy and detailed discussions to arrive at a mediated resolution, however when the mediation efforts failed, the matter proceeded to arbitration.

[2] At arbitration the Employer did not defend the Forms and argued that the grievances should be dismissed on the grounds of undue delay, waiver, or estoppel. On March 31, 2021, | issued an Award allowing the grievances. Significantly, at paragraph 33 of my Award I found that the parties agreed that the disputed STIPP Forms “exceed the limits set out in the current jurisprudence for what information an employer can request when determining eligibility for short term sickness benefits.” It is against this backdrop that l remitted the matter back to the parties to revise the forms so that they comply with the law summarised in my decision.

[3] Revised STIPP Forms are now being used by the insurer, (attached as Appendix A); however, the Union maintains that they do not fully comply with my Award. It takes issue with the following aspects of the Attending Physician’s Statement (“APS”):

1. The Functional Abilities Form (“FAF”) in Part A and B, which include detailed Physical and Cognitive Functional Abilities assessments that the physician is asked to complete in the following circumstances:

Can the employee return to work immediately with modified hours/duties?

Yes (Please specify below) No

If “No”, when will the employee be able to return to work with modified duties/hours? YYYY MM DD Please complete the suggested schedule below:

Recommendation for work: Full-Time Modified/graduated hours.

With restrictions – please complete Part A and/or B

Suggested schedule:

2. Two sets of questions about the nature of the current absence:

i. If childbirth: Expected or Actual Delivery Date: YYYY MM DD

C-Section: Yes No

ii. Has the patient been treated for this or similar condition in the past:

Yes No

If yes, date: YYYY MM DD Treatment provider:

[3] The Union also takes issue with the consent on the Application for Short- Term Disability Insurance Benefits (“Application”), which provides in part:

I hereby authorize the above-noted physician(s) to provide information to 880 Life Insurance Company Inc. (hereinafter SSQ) or to its subsidiaries, affiliates, third party administrations and reinsurers, all information that they have for the following purposes: to investigate and confirm the accuracy of my claim, determine my eligibility and entitlement for benefits, and to administer my benefits.

Collective agreement

[4] The relevant provisions of the collective agreement are as follows:

Article 23.01.01

Employees shall have the first seven (7) working days of illness, in a calendar year, covered by a Short Term Income Protection Plan, at one hundred percent (100%) of daily earnings. The Employer shall be responsible for the coverage for this portion of the Plan. These days cannot be banked, and are intended as insurance against income loss due to the employee’s illness only.

Article 23.02.02

a) Employees shall have the next eighty-three (83) working days of illness, in a calendar year, covered by the Short Term Income Protection Plan, at seventy- five percent (75%) of daily earnings.

b) When an employee commences sick leave in one calendar year, and continues into the next calendar year, the employee is not entitled to more than ninety (90) working days in the two years, until the employee has returned to work for twenty (20) consecutive working days.

c) When an employee has used ninety (90) working days sick leave in a calendar year, the employee must complete twenty (20) consecutive working days before being entitled to further sick leave days, in the next calendar year.


[5] The Union opened its submissions by acknowledging that the current forms are much improved but maintained that the disputed questions and consent do not respect key principles in Hamilton Health Sciences1 and other cases2 considered in my Award. lt argued that new questions have been added that request irrelevant information not required to determine entitlement to short term sick benefits and that the consent is overly broad.

[6] The Union identified four broad areas that it found objectional: the FAF at Part A, Physical Abilities and Part B, Cognitive Abilities; questions regarding pregnancy; questions pertaining to prior treatment for the same condition and the consent demanded of the employee.

[7] With respect to the FAF, the Union took the position that a detailed table of limitations and restrictions is not needed to adjudicate entitlement to benefits in the first instance and that inclusion runs the risk of a great deal of irrelevant medical information being provided to the insurer. To the extent that further details are necessary in specific cases, it should be requested on a case-by-case basis.

[8] Similarly, in the Union’s submission, questions pertaining to pregnancy and previous treatment inquire about irrelevant, personal information. Since the Attending Physician’s Statement already asks whether the patient has been hospitalised, has had surgery and the date of the first visit pertaining to this condition, the Union argued that the insurer has the essential information normally sufficient to adjudicate the claim. A request for specific details related to pregnancy and previous illness, regardless of how long ago the applicant was previously treated, is not consistent with utilising the least invasive approach to collecting personal medical information.

1 Hamilton Health Sciences v Ontario Nurse’s Association, 2007 Can Lll 73923 (ON LA) (Surdykowski).

2 Canadian Bank Note Company Ltd. v. International Union of Operating Engineers, Local 772, 2012 Can Lll 41234 (ON LA) (Surdykowski); Toronto Hydro-Electric Systems Ltd. v. Society of United Professionals, 2019 Ca

[9] The Union further submitted that the consent was still too broad as it authorises disclosure of ‘all information’. It suggested that the consent must be considered by reference to the questions listed in the APS, some of which it asserts are unnecessary. The Union requested that the consent be explicitly narrowed to “all relevant information” to prevent further or inadvertent disclosure of excessively invasive information.

[10] Finally, considering the length of time that has already passed, the Union requested an order that the Forms be amended within 30 days.

[11] The Employer maintained that it has worked diligently to ensure that the insurer revised the STIPP Forms to respect the law summarised in my award. It accepts that privacy and proportionality are important policy reasons favouring limits on compelled disclosure of medical information. Nonetheless, counsel for the Employer submitted that there are several countervailing considerations that inform the range of information that an employer can request in the first instance:

– The onus is on the employee to establish entitlement to paid sick leave; they must demonstrate that the absence is legitimate, and that they are genuinely unable to report to work due to illness or injury.

– An employer has the right to question an absence, especially if it is suspicious.

– An employer is permitted to seek information about an absent employee’s likely return to work and accommodations that may be required.

[12] With respect to the specific concerns raised by the Union, the Employer maintained that the FAF does not ask for a diagnosis, assessment, treatment, testing, medication, or any other question prohibited by Arbitrator Surdykowski in Hamilton Health Sciences. Nor is there a requirement that it be filled out in every case, for every employee. A close reading of the APS reveals that the FAF is only requested where the employee can return to work immediately with restrictions, a far narrower application than suggested by the Union.

[13] In the Employer’s submission, an FAF is merely another way to ask for an employee’s restrictions. The restrictions documented in Part A and B are functional abilities common to every job. In that respect, it is no different than asking a physician to identify an employee’s restrictions. The benefit of including an FAF is that it acts as an aid to the attending physician. By offering a detailed list of possible restrictions, the physician will be prompted to report all relevant restrictions. This approach should be preferred to asking an open-ended question to prevent inadvertent errors or omissions.

[14] Finally, it was submitted that the accommodation and return to work process continue to be a separate process. The FAF asks only for restrictions, not accommodations. These are permissible questions and there is nothing in Part A or B that offends the legal principles governing the disclosure of confidential medical information.

[15] In the alternative, if I determine that the FAF is overly broad, the Employer urged me to provide a clear direction, explicitly telling physicians that they should limit the information they provide to limitations relevant to the performance of the applicant’s job.

[16] The Employer similarly argued that the other questions objected to by the Union do not offend the legal principles articulated in any of the cases summarised in my prior award. Neither of the impugned questions ask for a diagnosis or treatment particulars. Whether the absence is related to pregnancy, or a previously treated condition is relevant to the insurer’s assessment of current entitlement. For instance, the Employer suggested that this information would be particularly helpful where benefits were sought for a relapse of a previously approved condition. However, if I determine that it is not appropriate to ask about all prior treatment, the Employer argued that the Union’s concerns could be adequately addressed by imposing a 90-day limitation, which would be congruent with the time limit in Article 23 for the receipt of benefits and consistent with the decision of Arbitrator Kaplan in Legal Aid Ontario, supra.

[17] With respect to the consent, the Employer maintained that there is no doubt that only relevant information will be released when the consent is read in context. Although it refers to disclosure of “all information”, it is qualified in a way that makes it abundantly clear that the consent provides a limited authorisation to release information in connection with the claim for short term sick benefits only.

[18] Lastly, the Employer urged me not to place a time limit on the implementation of any required revisions to the Forms. In its submission, it has actively engaged with the insurer to effect compliance with my previous order, and it is sufficient to maintain the previous direction that revisions, if required, be made as soon as practicable. In the alternative, if a strict timeline is deemed necessary, it submitted that 120 days is a reasonable time to amend the Forms.

[19] The employer referred me to the following cases in further support of its position:

[20] In reply, the Union agreed that employers are entitled to information that establishes that an absence is legitimate, however, this begs the question about the extent of the information it is entitled to receive. In the Union’s submission it is clear on the current caselaw that the employer cannot start with a presumption that the absence is suspicious. The same is true for information regarding return to work and accommodations. The approach used must be the least intrusive, with follow up questions on a case-by—case basis, as needed.

[21] The Union disagreed with the position advanced by the Employer that the questionnaire clearly indicates that Part A and B is required in limited circumstances. Counsel pointed out that the attending physician is asked if the employee can return immediately, and, if the answer is no, to complete Part A and B. The Union argued that it was unlikely that this would be read restrictively, as suggested by the Employer. The Union also disputed the Employer’s assertion that the FAF was just a set of general questions that apply to all jobs. Several of the restrictions are not commonly required forjobs performed by this group of employees. Special care must be taken with the disclosure of the cognitive restrictions, which may not only be irrelevant, but also potentially stigmatising.

[22] With respect to the questions seeking information related to pregnancy, Union counsel maintained that the focus must be on relevance, proportionality, and minimum intrusiveness. Specific caselaw is not necessary to oppose every possible question. The general principles apply, and there is nothing that distinguishes pregnancy from other medical conditions to entitle the Employer to know the specific diagnosis or nature of the surgery performed.

[23] The same is true for questions about prior medical history. The Union notes that while the Employer suggested that the information would be helpful where there is a subsequent application, presumably that information is already in the insurer’s file. Moreover, the Employer acknowledged that the information would likely only be probative in rare cases. In the Union’s submission, this is precisely the kind of information that should be requested on an individual basis and cannot be required of everyone.


[24] Grievances in this matter were first filed in 2018, followed by a lengthy period where the parties attempted to negotiate a resolution. The discussions eventually broke down, a hearing was convened, and l issued a decision at the end of March 2021 ordering the Employer to amend the STIPP Forms as soon as practicable.

[25] All the Union’s objections to the original forms have been addressed, however, new questions have been added which raise further issues regarding compliance. Considering the significant time and resources that both parties have dedicated to their effort to resolve this matter, I have determined that it is best to issue a clear direction of what is required and to set a timeframe for implementing further revisions to the Forms.

[26] As noted by both parties, the decision of Arbitrator Surdykowski in Hamilton Health Sciences is the generally accepted starting point for any analysis of what an employee can be asked when they apply for short term sick benefits. His decision has been widely accepted in the arbitral community and, together with subsequent decisions, sets out the key guiding principles. Central among these principles are the following:

1. The employer, or insurer who stands in the shoes of the employer, is entitled to limited information when assessing eligibility for short term sickness benefits. It can request confirmation that the employee is unable to work due to illness or injury; the employee’s expected return to work date; and the employee’s restrictions and abilities. However, it has “no prima facie right to an employee’s general medical history, a diagnosis, a treatment plan or a prognosis other than the expected date that the employee will be able to return to work with or without restriction”.3

2. Entitlement to sick benefits can engage several periods of assessment, with varying degrees of disclosure permitted along this continuum. A conservative, or minimally intrusive approach is preferred, and disclosure will therefore be limited in the first instance.

3. In some circumstances, there may be a legitimate need for further medical information to assess entitlement to short term sick benefits. Again, in keeping with the least intrusive approach, additional information should be requested on a case-by case basis where the employer has a demonstrable need for specific information.

3 Hamilton Health Sciences, supra, at paragraph 27.

4. Entitlement to short term sickness benefits must be distinguished from the accommodation process. Employers can ask general questions about restrictions on an employee’s ability to perform theirjob in so far as that is necessary to adjudicate the claim, however, it cannot ask, or go fishing for more detail than is reasonably necessary.

5. Efficiency and expediency do not trump an individual’s privacy rights.

[27] With these principles in mind, I have determined that the APS must be revised, but that the consent in the Application can remain as drafted. To restate the obvious, it is critical to my analysis that the STIPP Forms are used in the first instance and must be completed by all employees claiming benefits after 7 days of absence. An employer’s right to confidential information at this stage is narrowly circumscribed and should be limited to that necessary to adjudicate the immediate question of entitlement to short term sickness benefits. There may be legitimate occasions where follow up is needed and the employer, or insurer, can ask for specific information reasonably necessary to determine preliminary entitlement. The arbitral jurisprudence is clear, however, that this should be done on an individualised, case-by—case basis. Casting a wide net for all information that might be deemed necessary is inconsistent with the least intrusive available approach.

[28] Turning to the specific objections raised by the Union, I agree that a comprehensive FAF is not appropriate in the first instance. This question was considered by Arbitrator Goodfellow in Toronto Hydro-Electric, supra, where he concluded that the value of an FAF arises primarily in the context of a return to work/accommodation plan. As such, he found that “it is simply not possible that such information will be ‘reasonably necessary’ in every case after six days”. He went on to conclude that questions related to employee capacity can be asked, and that depending on the answer to a general question about the employee’s restrictions, it “could possibly lead to a proper request for an FAF. But, as a first instance requirement, applicable to all employees at day six, there is no room for the FAF.”5

[29] Although the Employer provided the decision of Arbitrator Kaplan in Legal Aid Ontario where the APS included an abbreviated FAF, I do not find this decision to be of great assistance on this issue. Arbitrator Kaplan noted that some disputes were resolved by the parties at mediation and that he was only addressing those issues that remained. Inclusion of the FAF was not identified as an issue in dispute and Arbitrator Kaplan did not offer any comments on its propriety. In these circumstances, I find the decision of Arbitrator Goodfellow in Toronto Hydro-Electric more helpful.

[30] I would also note that the FAF that was introduced in the revised STIPP Forms is particularly invasive and includes an extensive list of physical and cognitive restrictions. The Employer argued that the physician need only identify restrictions that are relevant to the performance of the applicant’s job, however, in my view that proviso is not clear on the face of the document. More importantly, even with a clear direction, there is a significant risk that busy physicians will fill in the form without due regard to whether the restriction has an impact on the applicant’s ability to perform theirjob. Indeed, it may be impossible to tell when the form is completed whether the restriction will still be operative when the employee is ready to return to work.

4 Supra, para 129.

5 Supra, at para 130.

[31] The Employer also suggested that the FAF is simply a table of restrictions that are likely to apply to most employees, performing most jobs. I disagree. There are several limitations that are not particularly well tailored to the Employer’s workplace or that will not apply to all employees, such as restrictions on climbing ladders, kneeling/squatting or supervising others.

[32] Finally, counsel argued that the FAF would assist doctors in providing a comprehensive assessment, ensuring that all relevant restrictions are included. I accept that a detailed list may prompt some doctors to fill out the form more completely. However, as professionals directly involved in providing care for the employee’s medical needs, most attending physicians will not require this aid. In any event, the limited benefit is not proportional to the much higher risk that irrelevant, and potentially stigmatising information will be disclosed. The insurer can always follow up with specific questions where reasonably necessary, but a general inquiry that simply asks the physician to list the patient’s medical restrictions is sufficient in the first instance. [33] The previous APS, used for many years, did not include an FAF but relied on a general question regarding restrictions. I note that the Union did not object to that question, and there was no evidence that it yielded inadequate results. In my view, there is no compelling reason why the insurer cannot continue to assess claims for short term sick benefits using this, or a similar question. I would also add that the Employer can ask for restrictions that require accommodation when the employee is ready to return to work as part of the accommodation and return to work plan, however, that is a distinct process.

[34] Nor are the questions that pertain to pregnancy and previous treatment relevant at the initial stage of the inquiry.

[35] There are several circumstances where the employee may not have disclosed their pregnancy, or indeed be intending to continue their pregnancy. The decision about when and whether to disclose this information is extremely personal and must be left to the employee. Like any other medical condition, identifying the precise nature of the medical condition or type of surgery performed goes beyond the information reasonably necessary to make the decision on entitlement to benefits and offends the employee’s right to privacy of their medical information. The attending physician is already asked whether the patient was hospitalised, if so, the date of their admission and discharge, and whether the patient had surgery. This should provide sufficient information at this stage of the process.

[36] Similarly, asking whether the patient has ever been treated for the same condition, when and by whom, also runs afoul of the currentjurisprudence. Simply put, whether an employee was previously treated for the same condition is largely irrelevant to their entitlement to benefits now. The Employer suggested that this information could be of assistance to the employee, making it easier for the insurer to approve a current request for benefits, especially in cases dealing with mental health related absences.

[37] Much of this information will or should be in the claimant’s file and already accessible to the insurer. Although arguably more expedient for the insurer, and perhaps more efficient for a small number of employees, the modest benefit of having that information is vastly outweighed by the interest served in protecting the employee’s right to privacy. An alternative remedy, limiting disclosure to treatment for the same condition within the last 90 days, is subject to identical concerns. I am not convinced that this question is relevant, even on a time limited basis.

[38] With respect to the consent, the Union suggested that it should be amended to authorise providing “all relevant information”. I do not think this is necessary. Although the consent authorises the release of ‘all information’, that phrase is expressly qualified by the remainder of the sentence restricting it to information required to investigate, determine eligibility, and administer the benefits related to the application. Inserting ‘relevant’ does little to provide clarity or restrict the consent and is thus neither informative nor necessary.

[39] Counsel for the Union suggested that the consent must be viewed having regard to the questions asked in the APS, which it submits captures irrelevant information. While I understand the Union’s concern, I do not consider it a distinct objection from that raised about the specific questions regarding pregnancy, prior treatment, and functional ability. Rather, the consent serves to amplify the risk from those questions, permitting disclosure of further irrelevant confidential medical information. The fundamental issue, however, is whether those questions are permitted: if they are, then there is no legitimate objection to the consent; if they are not, then they should be removed from the APS, thus eliminating the risk associated with the consent. l have already accepted the Union’s argument that all the challenged questions should be removed. Therefore, there is no need to further amend the consent.

[40] The remaining issue I need to address is that of timing. The Union maintained that this matter has been ongoing for some time and that the Employer has already had several months to fully comply with my previous order. Having failed to do so, the Union requested that | order the Employer to comply within 30 days. The Employer argued that it has been working diligently with the Insurer to implement my award, and that 30 days would be insufficient if further changes are necessary. It submitted that 120 days would be a more appropriate deadline.

[41] I understand that the Employer must work with the 880 to amend the Forms, however, I am not convinced that it will need 120 days to make the specific changes I intend to order. In the interests of finality and expediency, l have determined that the matter should not be remitted back to the parties and that I will direct the way that the forms should be amended. Based on a clear direction on how the forms should be revised, I consider 60 days sufficient to effect these changes.

[42] I therefore make the following Order:

1. Part A and B, Physical and Cognitive Functional Abilities table should be removed. The APS can be revised to include the following question asked in the previous iteration of the form: Describe functional limitations that prevent the patient from carrying out professional duties (or usual activities)

At the onset of disability:


2. The questions about pregnancy, delivery date and C-section should be removed.

3. The question that asks whether the patient has been treated for this or a similar condition in the past should be removed.

4. All revisions must be made within 60 days of the date of this award.

5. I will, however, remain seized to address issues that may arise with the implementation or interpretation of this award, including if a reasonable extension is necessary.

[43] Dated at Toronto, October 28, 2021:

Reva Devins, Arbitrator


REVISED STIPP FORMS (September, 2021)