Company refused to change accommodation offer after receiving new information about employee’s limitations
An Ontario company thought it made a reasonable accommodation offer to an employee coming back from heart surgery. However, when the company refused to change its original proposal after the employee told it of additional medical limitations, it failed to live up to its duty to accommodate to the point of undue hardship, the Ontario Human Rights Tribunal has ruled.
Harry Tofflemire worked in the mobile catering division of Windsor, Ont.-based Metro Enterprises, a provider of food and drink services to the manufacturing and construction industries. Tofflemire drove a catering truck and loaded and unloaded deliveries as well as negotiating credit transactions over 10-hour shifts. Metro considered him a very good worker over his 27 years with the company.
In 2006, Tofflemire, who had a history of heart trouble, had breathing problems but continued working, albeit in a modified position for five months. Finally, on Sept. 17, 2006, he had to take a medical leave again and on June 18, 2007, he received a heart transplant.
Graduated return to work
While recovering from his heart transplant, Tofflemire told Metro he was interested in returning to work. His doctor provided a functional analysis form that indicated he would need modified duties and hours, such as two hours a day initially, followed by a move to four hours a day until he was able to work eight hours. Tofflemire was also limited to lifting no more than 15 pounds until he was able to lift more.
Tofflemire returned to work on April 7, 2008, for one week in the stockroom, preparing food and drinks for the trucks. He worked in the stockroom again starting on June 9 for two weeks. After this, Metro said there was no more stockroom work for him.
Trouble finding modified job
Tofflemire expressed interest in working in Metro’s vending division, which supplied products to vending machines. He felt it would be less stressful than the mobile catering job, though it required lifting up to 30 pounds. His doctor cleared him to work seven-hour days, which was a requirement for vending machine positions.
However, Metro said all the permanent full-time jobs in the vending division were filled by long-term employees and the company couldn’t afford to create a new position at a time when it was losing money and downsizing in some departments. There was a temporary summer position that Tofflemire expressed interest in, but Metro didn’t see it as a good fit. The company offered him a customized seven-hour mobile catering route that it felt was less stressful than his original job.
Tofflemire’s doctor then sent a letter stating Tofflemire needed to work in a position that required less than 10 hours a day and didn’t involve significant exposure to the sun because of medication he was taking that made his skin more sensitive to sunlight.
Tofflemire also said he would be in touch after seeing his doctor on Aug. 5.
Metro didn’t hear back from Tofflemire by Aug. 18, so Metro sent him a letter saying it considered him to have turned down its job offer and was no longer seeking his job or seniority with the company. It said his file was closed, though it didn’t formally end his employment or send him a record of employment.
Employer didn’t consider other options
The adjudicator found Metro’s response to Tofflemire’s request to transfer indicated it didn’t want him to join the vending division. The company was worried about having to create an unnecessary position in the division that it couldn’t afford and whether there would be hard feelings from the other employees in the division.
“These concerns were such that (Metro was) simply not prepared to accommodate (Tofflemire) by transferring him to the vending division, including placing him into the summer replacement position,” said the adjudicator.
However, the company did offer him a position in the catering division that was customized specifically to Tofflemire’s limitations on working hours and stress concerns and it wasn’t aware of his issues about sunlight exposure at the time, the adjudicator found. This offer was a reasonable effort to accommodate Tofflemire at that point in time.
Once Metro received information about Tofflemire’s sensitivity to sunlight, however, circumstances changed, as did Metro’s duty to accommodate. The adjudicator found Metro was obligated to consider other accommodation options but it didn’t meet with Tofflemire and didn’t consider anything other than its original job offer. As a result, it failed to meet its duty to accommodate, particularly considering Tofflemire was willing to work in the temporary summer position in the vending division.
The adjudicator found placing Tofflemire in the summer position would only have been a short-term solution but it would have been a reasonable accommodation after Metro received the information on Tofflemire’s sensitivity to sunlight that affected his ability to do the job that was offered. By not even considering this option, the adjudicator found Metro failed to meet its duty to accommodate.
The adjudicator also found maintaining the job offer unfairly kept Tofflemire from resolving his employment status and receiving severance entitlements.
Metro was ordered to pay Tofflemire $7,500 for injury to his dignity, feelings and self-respect that resulted from the company’s infringement of the Human Rights Code and denial of his opportunity to return to work. The adjudicator indicated the award was not larger because he felt Tofflemire’s return to work “would likely have been relatively brief.”
Metro was also ordered to pay Tofflemire the difference between the wages he would have received in the temporary summer position and the benefits he received from Aug. 18, when the adjudicator felt he could have been placed in the position, and the end of the job’s term.
