Border officer removed from frontline duty after failing medical assessment
“I see a lot of duty-to-accommodate matters come up, particularly of late, and what's important to remember is that the legal standard is not to receive perfect accommodation but reasonable accommodation - and that's an important distinction.”
So says Lindsay Craig, an employment lawyer at Sultan Lawyers in Toronto, after the Federal Public Service Labour Relations and Employment Board dismissed a worker’s complaint that he wasn’t accommodated and suffered discrimination because of disability.
The worker was a border services officer (BSO) for the Canada Border Services Agency (CBSA). Hired in 1981, the worker worked at different border posts in Windsor, Ont., including the Ambassador Bridge, the Detroit-Windsor Tunnel, and a courier package facility.
The worker’s preferred post was the primary inspection line. For 25 years, he didn’t work with a sidearm, but in 2007 CBSA announced that it would provide its BSOs with firearms and training to enhance border security and safety.
The worker sustained a shoulder injury during combat defense training in 2008. However, CBSA allowed him to continue working primary inspection line posts with the accommodation that he didn’t have to examine large trucks. He was deemed unfit for defensive tactics training.
New medical assessment introduced
In 2009, CBSA introduced a medical assessment as a mandatory requirement for all employees in an enforcement position. Before it came into effect, the worker convinced his doctor to approve his refresher training for combat defense. He didn’t have to get medical clearance for refresher training in 2013, which he completed successfully.
In 2014, CBSA informed the worker that he would have to undergo the medical assessment for new firearms training. He did the assessment with his family doctor, who found some hearing impairment and sleep apnea that caused him to not sleep well. The doctor recommended hearing aids and for him not to work overtime or holidays due to “extreme fatigue.”
The worker’s doctor did not approve his medical assessment for firearms and enforcement training.
On July 31, 2014, the worker’s supervisor took away his defensive tools because he had failed the medical assessment. The supervisor also told him that he could no longer work in a frontline inspection post without those tools and he would be assigned to non-enforcement duties at the same level and salary. Management told the worker that he had the right to obtain a second medical opinion from a doctor of his choice, but the worker declined.
The worker was presented with an accommodation agreement with modified duties not requiring defensive tools, including work at the courier package facility where he had worked before.
Accommodation approach
CBSA approached accommodation from a good place by putting the worker in a role at the same scale with the same pay, and one that he had performed before, says Craig.
“I think a lot of times what we see in accommodation cases is frustration from an employee because the accommodated role, or the suggested alternative role, is different with different pay or even a different structure of pay,” she says. “In this case, it was essentially identical, so I think that was a good move on the employer’s part.”
In September, the worker asked to be put on an overtime list – he had previously been unable to work overtime because of his wife’s health issues. His supervisor agreed but told him that he would only be offered overtime when there was work available that met his accommodation.
From October 2014 to March 2016, the worker worked a total of six hours of overtime on two occasions and twice worked on holidays for 7.5 hours each.
The worker filed a grievance against the accommodated post, claiming that he was discriminated against by CBSA on the grounds of “possible age-induced physical disability” when his defensive tools were taken from him and he was reassigned from his preferred post. He also claimed that the change resulted in him losing opportunities for overtime.
The worker also claimed that CBSA committed “serious errors” in the accommodation process, as it failed to try to identify his functional limitation or try to accommodate him in his preferred enforcement post.
Adverse effect from policy, not disability: employer
CBSA argued that there was no discrimination as the decisions to remove the worker’s defensive tools and to move him to an accommodated post were based upon government policy and not his medical condition. It also said Health Canada determined the physical abilities required to safely and properly discharge CBSA’s enforcement mandate and the medical assessment criteria were meant to ensure the safety of BSOs and other people.
CBSA also pointed out that when the doctor refused to approve the worker’s medical assessment, it had no details on his health and medical condition. In addition, the collective agreement stipulated that if an employee failed to meet the criteria for firearm training and certification, CBSA was to “make every reasonable effort to find them a placement opportunity within the public service…” and it maintained that its actions were consistent with the collective agreement.
In circumstances where a new requirement is put in place – such as the medical assessment requirement for firearms training – clear communication on the standards and why it’s been put it place can sometimes help avoid employee frustration, says Craig.
“[With] a new requirement, I think that requires a lot more handholding from the employer in terms of communicating those changes,” she says. “Because otherwise, an employee with such long service can feel confused and slighted.”
“Sometimes that's a good way to avoid something snowballing into litigation - handling it from a human-to-human level,” adds Craig. “The legal test [for accommodation] is one thing, but the average person probably doesn't understand that and it can probably seem quite cold.”
Not medically fit
The board noted that the worker was found to be not medically fit to participate in the firearms training, which made him unable to comply with the standards set by Health Canada. In addition, he had the opportunity to seek a second medical opinion to see if he could pass the assessment but he didn’t, said the board.
The board accepted that the worker’s medical condition constituted a disability protected by the Canadian Human Rights Act, but it did not find that he suffered adverse impacts related to it. After he failed to pass the assessment, CBSA moved the worker to a new post in the same district at the same position level and rate of pay. The only difference was that he wasn’t frontline inspection and he couldn’t wear defensive tools, said the board, adding that it was the Health Canada policy that created the adverse impact.
“As an employee, you can experience adverse effects in your workplace, but the point is that the adverse effect has to be linked to one of the human rights protected grounds,” says Craig. “In this case, the employer was successful in arguing that the adverse effects weren’t necessarily because of his medical status or any disability, but because of the policy - it's a fine distinction, but the employer was successful in making that distinction, as well as looking at what accommodation was reasonable.”
The board also found that the worker did not provide evidence that he was available for additional overtime, as his functional limitations also limited what overtime he could work. In addition, the worker’s doctor had recommended no overtime because of the worker’s fatigue from his sleep apnea. The worker was assigned overtime on a few occasions, which indicated that CBSA was willing to assign some if it was work he could do, the board said.
No prima facie discrimination
Without any adverse impacts from a loss of employment or income, there was no prima facie discrimination, said the board in dismissing the worker’s grievance.
Human rights matters are dependent on the facts, so this decision could have potentially gone either way with a slight change in the circumstances, according to Craig.
“For example, if the worker was making a bit less than before, the accommodation requirement could be different, or it might be that the employee does have a negative impact because of a protected ground or because of a slight nuance,” she says. “Sometimes a case will come out and an employer might say, ‘Okay, we're good to bring in this new requirement and that's fine’ - but it might not be fine in their particular circumstances.”
“And a big nuance that I think employers and employees forget about is that [accommodation] is a two-way street, it’s collaborative,” adds Craig. “It’s working together with the employer and the employee to see if you can find an accommodation that works for both parties in the most reasonable way.
