Nurse’s back-to-work program halted after setback with no timetable for return; nurse placed on unpaid leave
An Ontario hospital made sufficient efforts to accommodate an injured nurse before it placed her on unpaid leave, an arbitrator has ruled.
Susan Shrubsole was a registered nurse at North York General Hospital in Toronto. In February 2011, Shrubsole suffered a back injury and had to take three months off work. She returned to work in May under a work hardening program that intended to ease her back into her duties over nine weeks until she was able to perform them full-time.
Work program reset after second injury
Two months into the work hardening program, Shrubsole suffered a setback when she injured her shoulder. The injury required the work hardening program to be altered to accommodate her injury. Shrubsole worked under this program until Sept. 8, when the hospital decided she wasn’t making any progress on the program. At this point, there was no easy fit in any of its departments with Shrubsole’s limitations and there was no medical estimate on when she would be able to return to work full-time. In addition, the hospital felt that the July shoulder injury indicated that, in Shrubsole’s current condition, the modified work she was doing could in fact be setting her back. Since she wasn’t getting any closer to full duties, the hospital placed Shrubsole on unpaid leave until she was able to begin a work hardening program and set her on the course to full duties.
Shrubsole was medically evaluated and a new work hardening program was scheduled to begin on Oct. 19 with new restrictions and modified duties. However, Shrubsole said she couldn’t begin the program until Oct. 31 due to personal commitments. She later developed an infection and was unable to return to work until Nov. 28.
Shrubsole returned to work on Nov. 28 under the new work hardening program. A short time later, she was able to perform her regular duties on a full-time basis.
Shrubsole’s union, the Ontario Nurses Association (ONA), filed a grievance, claiming the hospital didn’t provide accommodation during the unpaid leave from Sept. 8 to Nov. 28.
Employer shirked duty to accommodate during unpaid leave: Union
ONA claimed Shrubsole was performing the normal task of her job during the work hardening program, so it wasn’t a situation where the hospital was trying to find special duties to accommodate her. To simply end the program and place her on unpaid leave was a failure to live up to the duty to accommodate, a violation of the collective agreement, and amounted to discrimination against Shrubsole based on her disability. The ONA demanded that the hospital pay Shrubsole back pay for the period of her unpaid leave from Sept. 8 to Nov. 28, 2011, plus general damages for the discrimination.
The arbitrator noted that, as had been established in previous cases, the employer’s duty to accommodate did not necessarily include the obligation to create “a separate and modified job to accommodate (an employee’s) work restrictions. On the other side, the employer could not create a work program that could have a negative impact on the employee’s recovery.”
The arbitrator found, and the ONA agreed, that Shrubsole was accommodated sufficiently before she was placed on unpaid leave and after she came back, through the work hardening programs. He also found accommodation could be long-term if necessary.
“Accommodation goes beyond providing a temporary solution based on an expectation that an employee would ultimately return to his/her regular job – in appropriate circumstances, the employer must also consider how it could accommodate (an employee) who required a more permanent arrangement.”
The arbitrator found that there was no discrimination against Shrubsole and the hospital made attempts to accommodate her with its work hardening programs – first the original one and then a revised one after she was injured. After her unpaid leave, it developed another program, one which she delayed beginning because of personal commitments. The hospital, said the arbitrator, was “diligent” in its return-to-work programs which it continued to offer Shrubsole, despite her setback with her shoulder and the delay in returning in October. Since there was no improvement in Shrubsole’s condition and she was partially responsible for the length of the unpaid leave, the arbitrator found the hospital met its duty to accommodate. The grievance was dismissed.
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