Extreme Benefits Makeover: Employee Time Off for Cosmetic Surgery

Should employees receive benefits coverage for time off due to cosmetic surgery? At least two Canadian labor arbitrators think so.

In the most recent decision on point, North Bay General Hospital v. Ontario Nurses’ Assn. [2009] OLAA No. 47, 181 LAC (4th) 179 (Stephens), an employee was awarded sick pay coverage for time off while she recovered from cosmetic skin removal surgery.

The employee, a nurse, was left with excess and baggy skin after she lost a “considerable amount of weight.” In order to get rid of the excess skin, the employee decided that she would have it removed.

This elective surgery wasn’t covered by the government health insurance plan. The employee paid for it herself. She then needed to take two weeks off work for post-operative recovery and claimed sick pay.

The employee was covered by a union agreement. It included coverage for short-term sick leave or disability benefits. However, like many disability plans, it didn’t cover certain types of absences. Specifically, it didn’t cover absences for “ . . . illness resulting from commission by you of a criminal offence, engagement in an illegal occupation, willfully self-inflicted injury, or war.”

The employer, North Bay General Hospital, decided that the employee didn’t qualify for sick pay coverage because the surgical “injury” was “willfully self-inflicted.”

The employer also argued that the employee didn’t meet the definition of “total disability” as required under the policy. Its argument was that, instead of the disability causing the absence, the employee took time off, chose to have the procedure, and it was the procedure that caused the absence.

In response, the union took the position that surgery can be life-saving or life-enhancing. In this employee’s case, the surgery was life-enhancing. The union also raised concerns that the employer’s approach could end up being too intrusive and that the employer could end up second-guessing an employee’s decision to obtain certain medical treatment(s).

The union also referenced an earlier arbitration decision, Re Sault Area Hospital vs. Ontario Nurses’ Assn. [2006] OLAA No. 309, 86 CLAS 91 where the arbitrator had found that an employee who had undergone cosmetic surgery was eligible for disability benefits during the recovery period. The earlier case involved the same Ontario-wide nurses’ collective agreement.

The arbitrator also looked at earlier decisions on the meaning of “self-inflicted.”  In one case, an employee had to stay off work after suffering a severe sunburn while on vacation. This was found not to be a self-inflicted condition. An arbitrator found that employee’s actions (including falling asleep by a pool) were reasonable or understandable, and he was entitled to sick leave coverage.

In another infamous case, an employee had advised his coworkers that he wasn’t going to be attending work because he would be attending a party the night before his shift and he knew he would have a bad hangover. That employee too was found to fall within the definition of “illness” under the sick leave plan.

Ultimately, in the North Bay General case, the arbitrator found that the nurse’s condition wasn’t a “willfully self-inflicted” injury. The exclusion language in the plan wasn’t meant to exclude an employee’s actions that are reasonable or understandable. And he found this nurse’s actions met that test.

The arbitrator concluded that “ . . . so long as the absence is legitimately related to a total disability, an employee has the right to coverage.”

What this means for employers
This case underlines the importance of having carefully worded exclusion clauses in disability benefit or sick leave plans.

Given the increase in cosmetic surgery, what should employees and employers reasonably expect a sick pay plan to cover? What about surgeries that are more “vanity” related rather than “life-enhancing”?

The coverage will very much depend on the language in the policy. These cases show that cosmetic surgery is not likely excluded as a “self-inflicted injury” but may need to be separately excluded. They raise interesting questions around what types of cosmetic surgeries are appropriately covered by a disability plan.

While we have not yet seen a decision distinguishing between what could be considered purely vanity-related surgery and something more “life-enhancing,” we’re sure that, like the good (and not so good) reality shows, there will be more episodes to follow.

Contact the author, Sara Parchello

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  Sara Parchello, Partner, Bennett Jones
  Sara Parchello is a partner at Bennett Jones. She has an employment and labour focused legal practice, with considerable understanding of the retail, hospitality, and mining industries. She is a specialized resource for HR professionals and in-house counsel generalists to consult on employment-related issues, including drafting and enforcing restrictive covenants, human resources policy development, accommodation and disabilities, and advice on workplace harassment complaints and investigations. She also provides employment litigation services and labour arbitration in the provincial and federal sector. Sara is regularly engaged by clients to provide respect in the workplace training with a focus on employer obligations under the Occupational Health & Safety Act and the Human Rights Code