'There was a bunch of medical evidence… that they didn't seem to take into account': lawyer
A railway company failed in its duty to accommodate when it didn’t consider reinstating a worker with physical restrictions to his home position with modified duties as the first step in accommodating his return to work, a federal arbitrator has ruled.
The decision highlights the fact that there can be multiple parties involved in bringing an employee with an injury or disability back to work, but it doesn’t change the employer’s duty to accommodate, says Stephen Torscher, a labour and employment lawyer at Carbert Waite in Calgary.
“There might be a benefits provider or an occupational health and safety department that looks into the physical restrictions and the doctor's notes,” says Torscher. “Those parties have an obligation to protect the privacy of the employee and they can't always share the details of the employee’s medical history and diagnosis - the employer is only entitled to the prognosis and the restrictions that are necessary in order for the employee to function safely in the workplace.”
“But the duty to accommodate isn’t something the employer can shift to another party - it belongs to the employer and it needs to do what it can in order to fulfill that duty,” he says. “And if they need more information, if they need to work with the employee or the union to get the information that they need to take those steps.”
Reinstatement after termination
The worker was a signals and communications (S&C) maintainer for Canadian National Railway (CN), hired in 1998. In October 2013, the worker’s doctor put him on modified duties due to a knee injury that the worker had suffered, until April 2014. The worker was restricted to no more than 20 minutes walking on rough ground, no repetitive movement of the knee against resistance, and low levels of squatting, kneeling, bending, and crawling.
In January 2020, CN conducted a physical demands analysis for the S&C maintainer position.
On Aug. 3, 2022, CN terminated the worker’s employment due to another employee’s email that attributed concerning comments to the worker. CN’s investigation determined that the worker made the comments, but the worker denied doing so in his investigative interview.
In an October 2023 decision, the arbitrator concluded that CN had failed to meet its burden of proof, stating that relying solely on an email without further supporting evidence was insufficient grounds for dismissal. The arbitrator noted that CN could have taken additional steps, such as requiring a statement from the employee who wrote the email or conducting a supplementary investigation, to resolve the conflict. CN was ordered to reinstate the worker.
Medical forms part of reinstatement
As part of the reinstatement process, the worker’s doctor completed several medical forms about the worker’s fitness for duty as requested by CN in early January 2024. The doctor indicated that the worker was fit for modified duties indefinitely “as he has already had these restrictions for years and is not expected to change.” The worker was also cleared to drive vehicles and operate heavy machinery with no safety concerns, other than a restriction that he couldn’t drive a manual transmission because he couldn’t hold down the clutch.
On Feb. 29, the worker’s doctor wrote to CN recommending that the worker return to his home position with his existing restrictions in place, stating that “I do not see a medical reason as to why [the worker] cannot continue in his position of signals and communication maintainer.”
CN’s occupational health services (OHS) department noted that the worker’s restrictions remained the same and the worker had been doing his full job duties within his restrictions for the previous nine years, with no performance issues. However, it suggested a field assessment as the worker “had no proof given to labour relations that he has had these restrictions before.”
Home position exceeded restrictions: employer
On March 26, the worker advised CN that he wanted to return to his home position. However, CN’s senior manager of workers’ compensation determined that his original position exceeded his physical capabilities and it would be unsafe to return him to the S&C maintainer position.
CN didn’t return the worker to his original position. Instead, the company cited medical restrictions from a recent return-to-work physical and offered him three alternative, non-bargaining unit positions that were within his medical restrictions. The union contested this decision, arguing that the medical restrictions had existed for years and had not previously hindered his ability to perform his job.
The worker declined the alternative positions and, on March 28, CN stopped paying him.
The matter went back to the arbitrator to resolve the issue. The union argued that CN didn’t meet its duty to accommodate by not considering accommodation in the worker’s own job first. CN countered that it had accommodated the worker’s restrictions and he and the union had failed to co-operate in the accommodation process after it determined that the worker’s permanent physical restrictions were incompatible with his original position of S&C maintainer.
Citing previous case law and principles related to accommodation, the arbitrator emphasized the necessity of first exploring whether an employee can return to their original position before offering alternative roles.
Company rejects worker’s medical evidence
The arbitrator noted that the worker had successfully performed his duties with similar restrictions for nine years. However, CN relied on its “generic 2020 analysis of the S&C maintainer position” instead of conducting a field assessment as recommended by its OHS department and discounted the previous nine years of performance by the worker. Furthermore, the arbitrator pointed out that the worker’s doctor had provided medical evidence indicating there was no reason he couldn’t return to his original position and, if CN rejected it, it needed a contrary medical opinion to support its position.
“CN took some medical evidence that they had and an analysis that had been conducted a few years before, and disregarded any other medical evidence that might have been on the record, and came to the conclusion that the worker couldn't be returned to his original position because they had restrictions that would prevent him from doing that safely,” says Torscher. “The arbitrator was critical of that because there was a bunch of medical evidence on the record that they didn't seem to take into account.”
If an employer doesn’t agree with the medical evidence that’s on the record, it needs evidence to show why, and they didn't have any evidence of their own, adds Torscher.
“The worker had been doing the same job for nine years prior to the incident that led to his dismissal with similar restrictions the entire time and had no issues completing the tasks of his job,” he says. “But despite that, CN took the position that he wasn't able to hold that position and started the accommodation process essentially by looking for other positions without properly taking into account the whether he could go back to his original position with any restrictions.”
“There was pretty strong evidence that the worker was able to do his job safely based on the fact that he was able to do it for the past nine years, so it would take some pretty good evidence from CN to rebut the presumption he could continue to do the job safely,” adds Torscher.
Duty to accommodate
The arbitrator determined that there was no evidence to support CN’s position that the worker’s restrictions prevented him from returning to his original position. CN was ordered to reinstate the worker to his former role and compensate him for the delay in his reinstatement, including interest. CN was also required to comply with the terms of the original reinstatement order.
The duty to accommodate begins with seeing if there's any way to accommodate the employee in their current position with changes or modifications to their job, says Torscher.
“If the original position doesn’t work out, then you look at alternatives beyond that,” he says. “In this case, that didn't happen – CN immediately jumped to looking to accommodate the worker in other positions.”
The worker and the union always have a role to play in the accommodation process, according to Torscher.
“They informed CN as early as they could that they disagreed with the idea that the worker wasn't able to safely do his original home position and they disagreed with the three other positions,” he says. “They probably did all that they could, given that they were sticking with the notion that the there was no reason not to return the employee back to his original position.”
