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Beware the Band-aid solution

When a worker has medical restrictions due to an injury that interfere with doing the job, the employer shouldn’t simply decide the worker can’t work
Employment law
One Vancouver taxi company didn’t seem to get the memo on medical restrictions and accommodation when one of its drivers was in a car accident and suffered injuries to his neck, shoulder, arms and lower back. Shutterstock

By Jeffrey R. Smith

When an employee is injured and has medical restrictions on certain activities, it’s probably a good idea for the employer to ensure the employee isn’t asked to exceed those restrictions or, on the other hand, can’t work at all. And it’s an outright bad idea to punish the employee for refusing to exceed them.

On occasion, there might be a legitimate reason an employer can’t accommodate an employee’s disability. But to make such a claim, it needs to actually determine that accommodation isn’t feasible. That means investigating any possible accommodation options.

One Vancouver taxi company didn’t seem to get the memo on medical restrictions and accommodation when one of its drivers was in a car accident and suffered injuries to his neck, shoulder, arms and lower back. These injuries prevented him from being able to sit for long periods of time without getting up and stretching and he couldn’t lift, push, or pull anything over 10 pounds. His family doctor provided a medical certificate indicating the restrictions, which the driver gave to the taxi company.

However, the company wasn’t pleased with the lifting restriction because the driver leased an accessible van that was intended to be used to pick up passengers with wheelchairs. With his medical restrictions, the driver couldn’t lift wheelchairs.

When the driver provided the medical certificate, he assumed his restrictions would be entered into his ID on the database. However, the dispatcher repeatedly assigned him fares with wheelchairs, which the driver had to refuse. The dispatcher informed the company about the refusals and the driver was suspended twice. He was also forced to give up the van’s lease, since he couldn’t take wheelchairs, and moved to daily car service.

However, over a period of three months, the driver didn’t receive any assignments. A tribunal found the company discriminated against the driver based on his disability, as his medical restrictions were the reason he was suspended and then removed from service.

Though the company argued being able to take wheelchairs was a bona fide occupational requirement, the tribunal found no indication the company tried to accommodate the driver or why it couldn’t get by with the other 35 accessible vans in its fleet serving customers with wheelchairs.

It's not a new concept, but it seems some employers need a reminder on the duty to accommodate, particularly when an employee has medical restrictions but still wants to work. In circumstances like this, the first mistake employers make is usually to assume an employee can’t do the job or is malingering.

Accommodation may not be possible – though in the case above it was – and simply assuming there’s nothing the employee can do isn’t enough. Even if it’s not possible for the employee to work until an injury improves, the duty to accommodate means all reasonable options must be investigated. If nothing is feasible after that, then – and only then – can undue hardship be argued.

And as for suspensions – well, it’s probably obvious to most that disciplining an employee because of limitations stemming from a medical disability is not going to end well legally.

Employee disabilities and medical restrictions should be taken seriously, or it might be the employer who ends up getting hurt – in its bank account and reputation should it be found to be violating its employees’ human rights.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

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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