B.C. case highlights importance of making informed decisions in accommodation process
“Don't be intimidated by not getting the right medical evidence – keep asking for it until you get what you need to make informed decisions, because it's the employer’s decision that's going to be under scrutiny.”
So says Melanie Samuels, chair of the Employment and Labour Group at Singleton Reynolds in Vancouver, following an arbitrator’s dismissal of an accommodation grievance against a British Columbia municipality.
The worker was an equipment operator for the District of West Vancouver, driving a street sweeper truck during the day. The street sweeper could be driven from either the right or left side, although most of the driving was on the right side with the driver controlling the power steering with the right hand.
Operating the street sweeper usually involved tighter turning than conventional driving while watching for traffic and pedestrians.
New diagnosis
On Dec. 13, 2021, the worker provided a doctor’s note stating that he was experiencing “significant psychological stress” that prevented him from doing his job safely. He went on sick leave.
Just over one month later, on Jan. 24, the doctor sent a medical certificate saying that the worker had been diagnosed with carpal tunnel syndrome (CTS) in addition to the stress condition. The doctor wrote that it wasn’t safe for the worker to operate machines safely and would need modified work.
A May 9 medical certificate indicated that the worker would not be able to perform his regular duties “until corrective surgery has been performed.” The doctor recommended operating a truck on a trial basis but that the worker was unable to use his right hand for repetitive lifting.
The district was concerned that the doctor made no mention of the worker’s psychological condition and the suggestion of a trial seemed to contradict the statement that the worker couldn’t perform his duties until after surgery.
The district contacted the worker for more information on whether he could perform his duties safely. The worker’s doctor completed a medical questionnaire indicating that the disabling condition was CTS that was at least partially work-related, and that his other health issue was no longer disabling. The doctor added that the worker should be able to tolerate mild-to-moderate use of his right hand.
The district was still concerned that operating a street sweeper could cause re-injury or a safety risk. Since the injury appeared to be work-related, it notified WorkSafe BC and told the worker that Worksafe BC would assess the risk. If he wasn’t considered able to do his job, it would look for viable accommodation options.
An employer didn’t have to accommodate a worker without sufficient medical information, the Alberta Human Rights Tribunal ruled.
Safety primary consideration
When accommodating in a safety-sensitive position, safety is always paramount and employers owe it to their entire workforce to ensure that everyone will be safe, says Samuels.
“Even though the [worker] may have felt like there's no risk, the employer has an obligation to manage their entire workforce and keep everybody safe,” she says. “That, to me, was their primary consideration given the nature of his work.”
The district found that other equipment operator positions and administrative positions all required the regular use of both hands, so there weren’t any good fits.
On Aug. 18, a Worksafe BC case manager determined that the worker’s job did not contribute to his CTS and the worker was able to return to his regular job. The district directed the worker to return to work on a graduated basis on Aug. 30, which was pushed back to Sept. 6 at the worker’s request.
The district handled the back-and-forth well when they realized that they didn’t have sufficient information to accommodate the worker, says Samuels.
“They knew they were entitled to clear and cogent medical evidence, which they weren't getting and so they pushed back,” she says. “And then when they got back the second report, they were worried that [the work] exacerbated his [CTS], so they were like, ‘We need an assessment from the experts on this, which are WorkSafe BC.”
“I think they were very diligent – they were entitled to get clear medical evidence and they didn't have it so they couldn't make a decision,” adds Samuels. “I don't think they were being tenacious or aggressive – they were actually being proactive and smart about it.”
Poor accommodation efforts by both the employer and the employee led to an impasse in the process in a BC case.
Process took too long: union
The union filed a grievance alleging that the district failed to meet its duty to accommodate in a timely manner. The union took the position that the May 9 medical certificate effectively cleared the worker to return to work on a trial basis and the worker should have been tested on operating the street sweeper or considered for another driving position.
The union also argued that the district should not have relied entirely on or waited for WorkSafe BC’s assessment.
The arbitrator noted that operating a street sweeper was safety-sensitive and any diminished capacity to operate it could create a safety risk to the public and the operator, so the district would have to be convinced that the worker work safely.
The arbitrator found that the May 9 medical certificate didn’t mention the worker’s psychological condition – which had been the initial disabling condition – and seemed to contradict the statement that the worker couldn’t perform his duties until he had surgery.
The May 9 medical certificate didn’t provide clear and unambiguous medical advice, so it was reasonable for the district to require additional information, the arbitrator said.
All workers have an obligation to participate in the accommodation process, says an employment lawyer.
Insufficient medical information
The medical information just didn’t set out a clear path for returning to work or determining accommodation, says Samuels.
“[The district was] just doing their job as the employer to get the medical information clear, because there was a whole bunch of things going on when he had started with his mental health and then he had carpal tunnel,” she says. ““And then [it was] related to work, so the path wasn't clear from the very outset.”
The arbitrator found that it was reasonable for the district to wait for the WorkSafe BC assessment. The BC Workers’ Compensation Act requires work-related injuries to be reported and WorkSafe BC to investigate work-related safety concerns. A parallel assessment by the district would be “superfluous” and raise the potential for a disagreement between the two investigations, said the arbitrator.
In addition, the district did not have the expertise to determine if the worker’s CTS could be aggravated, so it was best to leave it to WorkSafe BC, the arbitrator said.
As for accommodation, the arbitrator noted that safety is a relevant consideration of undue hardship and both the employer and the employee must participate. Based on the medical information it had, the district understood the worker’s limitation was right-hand weakness and he had a restriction of mild-to-moderate use of his right hand.
The evidence was that the district looked at available equipment operator positions, administrative positions, and a few other jobs. However, all required the regular use of both hands. As a result, there was no suitable accommodation available based on the medical information, said the arbitrator, noting that employers aren’t required to create a new position to accommodate an employee.
When is it reasonable to request more medical information?
Work-related injury a game-changer
The arbitrator also found that there were no unreasonable delays in the process. The district responded to each medical certificate within days and, once the prospect of the injury being work-related was raised, it made sense to leave the assessment to WorkSafe BC, the arbitrator said.
“The arbitrator noted that it was a game-changer – now you've got a work-related injury, so it has to be reported to WorkSafe BC, which has the experience and the resources to assess whether someone can do their job duties in a safe way,” says Samuels. “They could have done their own assessment, but the employer’s ability to assess that is different from WorkSafe BC and everybody has to comply with WorkSafe BC – so they were smart in saying, ‘We’re going to let the experts do this.’”
The arbitrator determined that the district took reasonable steps in considering whether the worker could be accommodated, based on the medical information provided. The grievance was dismissed.
Ensuring that an employer can fulfill their duty to accommodate doesn’t just mean getting sufficient medical information – good communication will help keep the process from derailing, says Samuels.
“It’s about communication and keeping the expectations of the parties in mind,” she says. “I appreciate that the union position was more likely to be that the employer was being mean, but the employer was just trying to do exactly what they needed to do – they're trying to get the right information to make the best decision they can make.”
See Corporation of District of West Vancouver v. West Vancouver Municipal Employees’ Association, 2022 CanLII 100371.
