CPR worker's doctor, specialist cleared him for safety-sensitive position
“Accommodations are difficult for employers for a number of reasons - on the one hand, employers have occupational health and safety requirements to ensure that it's safe for an employee to work and also for the employees working with that employee to work. On the other hand, they've got a duty to accommodate disabilities… up to the point of undue hardship - those can be challenging things to balance.”
These words from Mike Hamata, partner at Roper Greyell in Vancouver, rang true for Canadian Pacific Railway (CPR) after it declined to follow an order to reinstate a worker to his regular job after conflicting medical opinions on the worker’s fitness for work arose.
The worker was a signals and communication maintainer, a safety-sensitive position involving the testing and installation of wiring, control cables, and hardware along with a variety of maintenance work on tracks and highways.
In April 2019, the worker experienced an episode of lightheadedness while on an unrelated medical leave. He didn’t lose consciousness, but it was diagnosed as a focal seizure. The worker took medication and started seeing a neurologist every six months.
In March 2020, the worker was cleared to return to work with full duties.
The objective of the duty to accommodate is to ensure the employer engages in a serious effort to assess the issue of accommodation, an Ontario arbitrator said.
Reinstatement order
The worker was suspended for 60 days in 2021, but an arbitrator overturned the suspension, ordering CPR to reinstate him to his position with full compensation. CPR applied for judicial review of the decision, but it reached a return-to-work agreement with the union.
The return-to-work agreement - dated Oct. 19, 2021 - provided for the worker to return to his regular job while being subject to six months of unannounced drug and alcohol testing. The worker also had to be declared medically fit for his regular position by the office of CPR’s chief medical officer or a designate.
The worker’s physician provided a medical assessment on Nov. 4 that indicated the worker had no restrictions. However, CPR’s occupational health services (OHS) nurse noted that a substance abuse program report indicated that the worker had had a seizure that was “mild epilepsy.”
A third-party review determined that there were no impacts on work safety or performance because of substance abuse and a seizures report concluded that the worker could perform safety-sensitive duties.
The OHS nurse provided a medical background to CPR’s corporate physicians around the worker’s reinstatement and noted that the seizure report contained a “question of epilepsy – presumed focal aware seizures” and the worker had “episodes of light-headedness and vertigo when [getting] up quickly.”
The duty to accommodate includes reasonable, not preferred, options, an employment lawyer says.
Disagreed with medical clearance
On Feb. 2, 2022, a CPR corporate physician found that the treating neurologist was not able to exclude an epilepsy diagnosis and the worker’s EEG was abnormal. The physician concluded that the worker was “at risk of having a sudden and unpredictable impairing event related to a seizure and/or an episode of light-headedness and vertigo” which could have a negative impact on safe railway operations. The corporate physician considered the worker unfit for the signals and communication maintainer position and said that he should be restricted to non-safety-sensitive work.
CPR’s disability management team began searching for accommodation, but the union said that the opinion of CPR’s medical staff contradicted the worker’s specialist.
CPR determined that the worker could not return to his regular position based on the “additional medical information from 2021 which suggests a potentially more severe diagnosis.” The railway developed a return-to-work plan that put the worker in a temporary position supporting trucking services in an office setting. The position was outside the bargaining unit and paid the worker less than what he earned in his regular job.
Regardless of the accommodation issues, placing the worker in a job outside the bargaining unit without consulting the union was troublesome, says Hamata.
“That is something that the union has to be involved with, because that involves modifying the employee's entitlements under the collective agreement,” he says. “[The worker] goes from having all of the entitlements under the collective agreement applicable to the position to none.”
Accommodating permanent restrictions does not require an employer to permanently remove the core duties of a job.
Worker cleared for work: union
The union grieved, alleging that CPR’s failure to reinstate the worker into his regular position was unreasonable, arbitrary, and discriminatory as the worker had been cleared for work by his physician and there were no restrictions other than the decision of CPR’s corporate physician. It violated the collective agreement, the Canadian Human Rights Act, and the arbitrator’s reinstatement award, said the union.
CPR argued that the return-to-work agreement required the worker to be medically fit for his regular position as determined by the office of the chief medical officer, which did not happen.
Employers are entitled to clear, current, and credible medical information as part of the accommodation process and when there is conflicting medical information they can either choose one side, with good reasons, or investigate further, says Hamata.
“Probably the safer step for employers is to obtain further medical information that resolves the conflict,” he says. “Employers can write a letter back to the same physician highlighting a conflict in the medical information and asking for an opinion that resolves that conflict, or escalate the level of medical information that they are seeking.”
“[Consult] another physician who can review the conflicting medical information and provide an opinion, or sometimes it's appropriate to escalate to obtaining an independent medical evaluation – but employers can't jump to that step [of implementing restrictions],” says Hamata.
A fired worker’s resistance to modified duties wasn’t supported by medical information, an Ontario arbitrator ruled.
Assumption of epilepsy
The arbitrator noted that the worker’s neurologist and family physician concluded that the worker could return to work safely, while CPR’s physician disagreed and the railway seemed to assume that the worker had epilepsy.
Th arbitrator found that the return-to-work agreement’s requirement that the worker must be found to be medically fit by the chief medical officer did not exempt CPR of the duty to accommodate or justify the preference of its own medical opinions over the worker’s doctors. It was apparent that more investigation was needed to determine why there were conflicting medical opinions, the arbitrator said.
The arbitrator found that CPR did not sufficiently investigate to help determine accommodation – the railway didn’t discuss the matter with the worker’s neurologist or suggest an independent medical examination. This was despite the fact that the union raised concerns over the conflicting medical evidence, said the arbitrator, adding that the opinion of the corporate physician was based on the worker performing “every single element of his position,” which wasn’t how accommodation worked.
CPR was ordered to reinstate the worker to his regular position “at least on paper” and perform a proper accommodation analysis in consultation with the worker and the union.
The arbitrator in this case seemed to accept that all accommodations are a tripartite process involving the union, employee and employer, but that's not necessarily true as a matter of law, according to Hamata.
“Probably in this case it's governed by the particular collective agreement and maybe the Canada Labour Code, but there's a BC Court of Appeal decision [Telus Communications Inc. v. Telecommunications Workers’ Union, 2017 BCCA 100] that confirms the actual role of a union in the accommodation of a unionized employee,” he says. “The accommodation process generally happens between employer and employee, except where the proposed accommodation results in a modification of the collective agreement - at that point, the union must become involved.”
“That's just a general proposition subject to the terms of the collective agreement, and many collective agreements do specify that the union has a right to be involved,” adds Hamata.
However, Hamata notes that it could still be possible to place the worker in a lower-paying position if that was the most reasonable accommodation solution.
“Employees are entitled to reasonable accommodation, not their preferred accommodation, and the reasonable accommodation may be in a lower paying position,” says Hamata. “And if that is a reasonable accommodation, then there's no entitlement for an accommodated employee to be paid at their former wage or compensation.”
