Lack of accommodation effort leads to discrimination

Accommodation plans aren’t static – they can evolve over time and employers should be prepared for change rather than expect an employee to return to work as normal following a medical leave or accommodation plan, according to Dylan Snowdon, an employment lawyer and partner at Carbert Waite LLP in Calgary.

“Much more often an accommodation plan needs to be changed. It’s something that evolves and hopefully fades away over time, but certainly employers shouldn't expect an accommodation plan to end without some type of transition period,” says Snowdon.

That’s one lesson employers can learn from an Alberta worker’s successful disability complaint that arose from a disagreement over how he should return to work following surgery.

Change to shift schedule

The worker was a maintenance supervisor at an oil sands site for Acheson-based construction and mining equipment company North American Construction Group (NACG). He suffered from a gastrointestinal disorder that required regular medication and lifestyle management.

In August 2011, the worker underwent surgery and was off work for a two-month recovery period.

The worker’s physician cleared him to return to work in his “usual employment” effective Nov. 4. The worker was still recovering from surgery and was unable to eat solid foods, but the physician felt that he could work his regular day shift.

Read more: Accommodation of an employee with a disability must be reasonable, not perfect, according to a B.C. Human Rights Tribunal decision.

However, NACG had changed the shift schedule at the oil sands site. When the worker was scheduled to return, he discovered that instead of day shifts only, he was scheduled for a rotating shift schedule with more consecutive shifts and switching between days and nights. The worker was anxious about the change, as his acid reflux symptoms were worse at night and he hadn’t worked night shifts for 10 years.

The worker refused the shift work and provided medical notes indicating that he could only resume his employment for day shifts until further notice. On Dec. 1, the physician completed a medical questionnaire indicating that the worker had recovered sufficiently to return to his previous work schedule with no night shifts until he was fully recovered.

Communication problems

The problems seemed to start with miscommunication between NACG and the worker, says Snowdon.

“It seems like [the worker] didn't find out about the shift change until he showed up at work – it certainly wasn't something that was communicated to him in a way that allowed him to doublecheck it with the treating physician before he came back to work,” he says. “And then, after returning to work, and suddenly making a further accommodation request, I think the employer seemed to get frustrated with that.”

However, patience and understanding could have gone a long way towards avoiding some of the trouble, according to Snowdon.

“If you as an employer feel frustrated by this, I think that's fine, because managing disabilities is frustrating,” he says. “But it's much more frustrating for the person who's actually medically impacted, so having a bit more empathy for someone making an accommodation request certainly would have gone a long way. They probably could have arrived at something that worked for everyone much more easily, but they appear to have just dug their heels in at the first sign of resistance.”

LTD, accommodation serve different purposes

The worker applied for long-term disability (LTD) benefits and NACG’s insurer conducted a review in January 2012. NACG’s disability manager and HR department indicated that they didn’t think the worker was totally disabled, and the insurer concluded that his medical condition didn’t prevent him from working nights. The insurer denied the worker’s application, but the worker appealed and the insurer accepted that he was totally disabled.

Employers should be careful about leaning too much on the assessment of insurers when it comes to accommodation, particularly when the assessment is done by medical staff who aren’t the employee’s treating physician, says Snowdon.

“A very common error is having an employer rely on insurance adjudications to determine accommodation needs – in a lot of ways they seem the same, but they are different,” he says. “The employer really shouldn't be relying on whether an insurer accepts an LTD claim or not as evidence of anything medical, because all it is is evidence of the insurer thinking it's a covered event or not – there could still be accommodation necessary, even if LTD is declined.”

The worker remained on LTD leave until July 2012, when NACG terminated his employment. The company claimed that it was part of a larger layoff – the worker was chosen because he didn’t have a safety ticket and he was viewed as one of the weaker maintenance supervisors because he wasn’t prepared to take on shift work.

The worker made a human rights complaint alleging discrimination on the basis of disability when NACG refused his accommodation request and later terminated his employment.

Disability a factor in termination

The Alberta Human Rights Tribunal found that the worker’s refusal to work shift work and his request for accommodation shifted the employer’s views of him, with the company believing that he exaggerated his disability. This put him on the chopping block for layoffs, which was an adverse factor directly related to his disability and made it a factor in the decision to terminate his employment, said the tribunal.

The evidence also showed that NACG used lead hands to fill in supervisory absences during the worker’s medical leave, which was also the case on his days off and night shifts. This continued when the worker remained on leave after his accommodation request, indicating that it would have been possible to continue that arrangement until the worker’s recovery from surgery was complete, said the tribunal.

Read more: There is no duty to accommodate if an employee doesn’t provide proper medical information, the Alberta Human Rights Tribunal has ruled.

NACG also presented no evidence that it reviewed any positions or explored any other accommodation options. As a result, the company couldn’t claim undue hardship that justified its failure to live up to its duty to accommodate, said the tribunal.

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The tribunal determined that NACG discriminated against the worker when it refused to return him to work and then terminated him. It left the issue of remedy to a separate hearing.

This decision highlights two common accommodation-related errors that employers make, according to Snowdon – not getting clear information on restrictions and limitations, and then not connecting them to a job description.

“My advice to employers is to communicate with the treating physician when an employee comes with a form saying they can return to their usual employment – generally, the treating physician is relying on the employee's description of the job or the physician misunderstood it,” he says. “I think best practice is to say, ‘Can you please get your treating physician to fill out this ability-to-work form?’ and have a proper job description – what can the employee do or not do or what are they restricted or limited to?”

See Woods v. North American Construction Group Inc., 2022 AHRC 26.