'A blanket practice that they're not even going to explore modified duties creates a problem for the employer'
An Alberta company failed to properly accommodate a worker’s disability by unnecessarily delaying her return to work following a medical leave, an arbitrator has ruled.
The worker was an employee of Fort McKay Logistics LP (FML), an Edmonton-based logistics service supplier, in the company’s Fort McMurray Division since 2018. She was a tool crib attendant for the division, which sourced and supplied warehouses for the Syncrude oil sands business. Her job duties involved some work at a computer and some physical work at a counter. She usually worked alone, but sometimes other employees would help her with heavy lifting.
Syncrude’s site access required that employees on a leave of absence for more than 60 days undergo drug and alcohol testing within 90 days before starting work.
The worker went off work on April 5, 2023. On May 5, she provided a medical note stating that he had been in the hospital for the past month and had undergone emergency gallbladder surgery, for each she would need four weeks to recover.
The worker provided a second medical note on May 18 stating that she was recovering from surgery and would be unable to work for four weeks until June 6. FML placed her on a long-term illness and injury leave under the Alberta Employment Standards Code (ESC) and removed her from active duty. The company also informed the worker that if she was absent for more than 60 days, she would have to undergo drug and alcohol testing before returning to work at the Syncrude site, which could take up to seven days.
Modified duties
The worker didn’t return to work on June 6, providing a medical note four days later stating that she was unable to work until June 21 and could work on modified duties for two weeks starting June 22, with regular duties after that.
FML didn’t accept the modified duties request, as its past practice was not to offer modified work for non-occupational injuries, so it required full medical clearance before allowing her to return. Due to this practice, the leave co-ordinator determined that nothing could be done until the worker provided full medical clearance.
“Having this blanket practice that they’re not even going to explore modified duties creates a problem for the employer, because that's essentially unlawful,” says Stephen Torscher, a labour and employment lawyer at Carbert Waite in Calgary. “You need to comply with the obligations under human rights legislation, and that includes not discriminating against your employees and providing accommodation where it's reasonable, or at least exploring accommodation.”
The worker confirmed that she was fit to return to full duties on July 6 and FML asked her to see a company doctor to confirm her fitness for duty.
The worker then asked to have her pre-access drug and alcohol test scheduled and her doctor had cleared her to return, but the leave co-ordinator advised that the company needed medical clearance before scheduling the test – it was company practice not to incur the cost of drug and alcohol testing until receiving medical clearance. He understood that waiting for medical clearance would delay the worker’s return to work, but he felt he had to follow FML’s policy as directed.
Medical clearance
The worker saw the company doctor for about 10 minutes on July 6, who cleared her for full duties. FML received the clearance on July 10 and issued an amended employment agreement requiring the testing. The worker accepted the same day and FML sent a request for testing on July 11.
The worker had received short-term disability benefits from April 5 to the day the company doctor cleared her for work on July 6.
The examination by the company doctor was very cursory, notes Torscher.
“It's not as though it was a full-blown physical demands assessment, it was a pretty quick and rudimentary examination,” he says. “So why would the information from the worker's doctor be unsuitable for [FML’s] purposes?”
The worker submitted to a drug and alcohol test on July 12. FML received the results on July 17 and cleared her to return to work. The worker ultimately resumed work on July 21.
Grievance over delay in return to work
The worker filed a grievance on July 20, stating that she had informed FML that she was cleared for modified duties on June 22 and full duties on July 6. She claimed that FML delayed in setting up the drug and alcohol test, resulting in her missing seven shifts from July 9 to 20 for which she had been medically cleared, noting that Syncrude’s policy allowed for a valid test results up to 90 days before the start of work.
FML argued that it was logical not to set up testing until the worker’s fitness to return to work was confirmed. It also maintained that the worker’s grievance only concerned lost wages and didn’t raise a claim of failure to accommodate a disability. However, the arbitrator determined that the failure to accommodate was central to the grievance and the worker couldn’t have requested accommodation because she was only told she couldn’t return on modified duties.
The arbitrator found that FML didn’t assess whether modified duties were possible after receiving the initial medical note and it applied an unwritten policy – there was no evidence of a written corporate policy - requiring employees to be fully fit before returning to work. The company didn’t offer the worker an opportunity for accommodation or explore whether adjustments could be made to her role for the two-week period recommended by her doctor, the arbitrator said.
“There really wasn't any comment from FML on the doctor's note that that gave a return-to-work date [of June 22] with modified duties for two weeks,” says Torscher. “And there seemed not to be any argument or evidence about why that doctor's note shouldn’t have been accepted - it might have triggered an obligation on the part of FML to start exploring accommodation options and a return to work a lot sooner than it actually did.”
The arbitrator also found that FML didn’t act expeditiously in facilitating the worker’s return to work. It required her to see a company doctor despite her own doctor clearing her, delaying the approval process. The drug and alcohol test was scheduled only after full medical clearance was received from the company doctor, adding to the delay, said the arbitrator, noting that the company “knew that an employee might be on a disability leave, receive disability insurance benefits until fit to return to work, and then have to wait, with no income, until both the company doctor had confirmed the ability to return to work and a pre-access drug and alcohol test had been done.”
Rigid application, misunderstanding of policy
“It seemed like [FML] misunderstood Syncrude’s policy that required drug and alcohol testing if you've been away from work for 60 days or more [but testing could be up to 90 days before starting work],” says Torscher. “That misunderstanding and the rigid application of that policy added to the delay.”
FML’s policies and practices were too inflexible to ensure that it met its lawful obligations and duties to its employees, according to Torscher.
“The policy needs to be amended or there needs to be some sort of discretion permitted for those who have to administer that policy,” he says. “There might have to be consideration for individual cases and more flexibility to deal with those things on a case-by-case basis, to ensure that the duties and obligations are being met.”
FML was ordered to compensate the worker for six lost shifts that she could have worked had she been allowed to return on July 6, plus “modest general damages of $1,000… for the violation of her human rights.” The arbitrator declined to order compensation for any lost shifts from June 22, as the worker didn’t provide information on the STD payments she received up to July 6.
“The arbitrator was critical of FML for what seemed like almost completely ignoring the worker’s own doctor's note about when her fitness to return to work would take effect, the modified duties, and when she'd be able to return on a full-time basis,” says Torscher. “That might be something that employers should keep in mind - if they've got medical evidence that an employee is ready to return to work, they're going to have to provide some sort of justification for why they aren't willing to accept that information if they're challenged.”
