Alberta worker’s claim of insufficient accommodation dismissed

An Alberta worker’s claim that her employer failed to accommodate her during a lengthy medical leave and when it assigned her to a new location has been dismissed by the Alberta Human Rights Tribunal.

Maureen Krill worked as an occupational health nurse for Primco Dene EMS, a provider of emergency medical services at oil and gas facilities. She was assigned to a work camp clinic at an oil and gas site in Alberta. On April 15, 2015, Krill had to go on medical leave because of a chronic foot injury, which eventually required surgery.

At the beginning of Krill’s medical leave, Primco Dene asked her to keep the company updated on her progress. One month later, the company inquired as to whether she had an idea of when she would be able to return to work. Krill didn’t have an estimated return-to-work date at that point, and Primco Dene continued to maintain regular queries about when she thought she might be able to come back to work — twice in June 2015, once in July and once in August. The latter communication asked if Krill was able to get medical information forms from her doctor, but the answer was negative.

In June, Krill’s name was mistakenly included on a list of former employees and her benefits were terminated. However, when she informed the company, her benefits were immediately restored. A couple of months later, Primco Dene declined to reimburse Krill for her professional registration fees to the College and Association of Registered Nurses of Alberta, which she needed to maintain her nursing licence. The company normally reimbursed its nurses for the fees when they were required for work, but since Krill was on medical leave, it felt that she didn’t need an active practice permit. It eventually relented and reimbursed her.

In early November, the company told Krill that it needed some more information regarding the limitations of her injury so it could “accurately advise on available modifications.” It wanted to know how her injury impacted her job duties and certain activities, as well as if she had an estimated return-to-work date. Krill maintained that she still didn’t have an estimated date and would likely get more information in the future.

The company inquired about a return date once again in December, with no success. After Krill had her surgery in June 2016, it asked her if the surgeon would be able to clear her for modified work and when that might happen. It followed up again in August 2016, asking about having “a chat and catch you up on where we are at the clinic and what we can do to accommodate your gradual return.”

Krill’s benefits were halted again in March 2016 when Primco Dene changed its benefits provider when the provider made an error during the transition. It took some time to work out the issue, but her benefits were restored retroactively in September.

Modified duties

Krill was eventually able to return to work on Sept. 14, 2016, 17 months after she went on medical leave. Primco Dene assigned her to modified duties in its head office rather than the work camp clinic, as it felt that the nature of the work at the clinic was onerous and an occupational health nurse needed to be at full duties. In addition, the shift schedule at the work camp clinic required 12-hour shifts — the contract with the oil and gas company was for 24-hour service — which Krill was unable to do in her modified duties. If Krill was at the work camp, the company would have to find another nurse who was willing to work four to six hours per day and not every day while in camp.

Krill wasn’t happy with being reassigned to the head office and asked if she could be an “extra” at the work camp instead of scheduled as a regular staff member. However, the company said it wasn’t feasible and Krill worked at the head office performing duties that were within her physical restrictions and at her regular rate of pay, although it was for fewer hours since there was no need for 12-hour shifts.

Krill filed a complaint alleging that Primco Dene discriminated against her in the area of employment on the ground of physical disability. She said that the company failed to consider accommodation options that would have returned her to work earlier with modified duties, extending her medical leave to 17 months. She also said her benefits were changed without notice while on leave and the company failed to pay for her professional registration fees, which was also discriminatory because these put her in a disadvantaged position because of her disability.

Krill filed a second complaint alleging that Primco Dene retaliated against her for the first one by scheduling her for fewer hours in the head office instead of returning her to the work camp clinic. She said this was differential treatment and a demotion.

Reasonable accommodation

The Alberta Human Rights Commission investigated the matter and the director dismissed both complaints, finding that Primco Dene reasonably accommodated Krill’s physical disability through a medical leave and modified duties. The director noted that the company consistently stayed in touch with Krill on her status and expressed a willingness to work with her to determine accommodation, but Krill didn’t provide sufficient information to determine her modifications.

The director also found that when Krill’s benefits were cancelled, the company quickly worked to remedy the situation and her benefits were restored with no loss. As for the nursing registration fees, the company had reason to believe they weren’t required at the time and it eventually reimbursed her anyway, the director said.

The director also dismissed the second complaint, finding no evidence that any of the company’s conduct was “an intentional or direct response to your previous human rights complaint.”

Krill appealed to the tribunal, which upheld the director’s decision to dismiss both complaints.

The tribunal agreed that Primco Dene made sufficient efforts to accommodate Krill, as it kept up regular communication with her during her leave and frequently asked for an estimated return-to-work date and her restrictions. Krill didn’t supply either of these through most of her leave, so the company was unable to explore accommodation options.

The tribunal also found that Primco Dene had legitimate reasons for reassigning Krill to the head office based on her inability to work 12-hour shifts in a remote area without access to workers who could cover shorter shifts. Krill’s request to be an extra suggested that she wanted the company to “create a position for her for which it had no need and could not claim as an expense to its client as it did for nurses working to meet the… contractual obligations.” The reduction in hours at the head office was a reasonable part of the accommodation, as that reflected the nature of the head office duties, the tribunal said, adding that the company maintained her rate of pay even though nurses at the head office normally were paid less than at work camps. The duty to accommodate didn’t require a perfect accommodation and meet Krill’s preferences as long as it was reasonable.

The tribunal also agreed that the benefits cancellations and professional registration fees reimbursement were not discriminatory, and there was no evidence of a demotion as Krill was still employed as an occupational health nurse with similar responsibilities.

For more information, see:

• Krill v. Primco Dene (EMS) Ltd., 2021 AHRC 54 (Alta. Human Rights Trib.).