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Accommodation co-operation

An employee’s off-duty behaviour could thwart accommodation efforts

By Jeffrey R. Smith

The health and safety of employees at work is an important issue for employers, both for the individual protection of employees and for the sake of the employer’s productivity. Unfortunately, the reality is that employees do get hurt at work, and sometimes the injury is serious enough that the employees have to take some time off to get better or work modified duties that don’t aggravate their injuries.

When an employee is off work or working modified duties, it’s only fair that the employer receive updates on the employee’s prognosis and capabilities. Usually, this information comes from a functional abilities form (FAF) or other documentation that the employee’s physician (or an independent medical examiner) fills out periodically. This allows the employer to assign duties within the employee’s capabilities without risking re-injury until the employee is able to resume her full duties.

But the employee has some responsibility to the employer as well. With the employer making the accommodation of assigning modified duties on the job to help the employee heal, the employee has the obligation to do what she can to take care of herself and facilitate her return to full health so she can eventually perform her full duties. But what if the employee isn’t being careful enough?

Last year, an Ontario employer arranged for an employee who had hurt his back at work to perform modified duties until he got better. The modified duties came from a collection of other employees’ jobs that the employer put together into one job for the employee. The employee’s doctor filled out FAFs on a regular basis the outlined the employee’s limitations, which included limited time standing, sitting and walking along with no stair or ladder climbing.

After a few weeks with no change in the employee’s medical restrictions, the employer asked the employee if he was becoming able to do more. The employee said he had “good days and bad days” but he should stay within the restrictions given by the doctor.

The employer became suspicious and hired an investigator to conduct surveillance on the employee outside of work. For the first few weeks, the investigator observed nothing that indicated the employee was exaggerating his limitations. Eventually the employee said he was going on vacation to Montreal to watch some hockey games, and the investigator followed him.

In Montreal, the employee was observed walking around the city, climbing stairs in the hockey arena, dancing in celebration, climbing a statue and posing for a picture on the ground. When he came back to work, he couldn’t provide an explanation for his actions other than he was intoxicated and probably shouldn’t have been doing those things when he was still recovering from his injury. The employer decided to fire the employee for being dishonest about his functional abilities.

However, the employee was reinstated by an arbitrator who found he wasn’t being dishonest about his condition, he was just being irresponsible on his vacation. However, though the employee was reinstated, the arbitrator made a point of saying the employee showed bad judgment in risking re-injury, which breached his responsibility of making an effort to get back to full health so he could perform his regular duties at work. The arbitrator determined a four-week suspension was appropriate discipline for the employee’s actions: Energex Tube and Unifor, Local 523, Re, 2013 CarswellOnt 18465 (Ont. Arb.).

So although the employer was wrong in assuming the employee was being dishonest and shouldn’t have dismissed him, it’s interesting to see that the employee’s careless behaviour while off-duty warranted serious discipline. While employers have an obligation to accommodate an employee who is injured, employees have an obligation to do their best to get back to full working ability. If they don’t, an employee may have the right to impose significant discipline. In this case, a four-week suspension – which is a substantial penalty – was deemed appropriate. If the employee re-injured himself and was unable to work at all, would this free the employer from the duty to accommodate?

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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