Transfer reasonable due to lesser impact on staffing: Arbitrator
An Alberta hospital was entitled to transfer a nurse to a different unit where her disability could be more easily accommodated, an arbitration board has ruled.
Katy Lorenzen was a registered nurse (RN) in the pediatric medicine department — in a unit designated as 4E4 — at Edmonton’s Stollery Children’s Hospital. In October 2014, she moved to a permanent position in the unit. In March 2017, she requested accommodation for a medical condition that involved part-time duties with no overnight shifts, providing medical information from her physician that supported her request.
The hospital agreed to accommodate Lorenzen on a temporary basis. It assigned her to a combination of 12- and eight-hour shifts to keep her working days while maintaining a demanding shift rotation required by the unit — there was a higher nurse-to-patient ratio due to the needs of its patients. Lorenzen’s accommodated position was three-quarters of a full-time equivalent position.
In September 2017, Lorenzen made another request for accommodation in a permanent day-shift position, supported by information from her physician stating she was unable to work night shifts because of an illness.
However, the hospital determined it couldn’t accommodate her permanently in unit 4E4 as it was developing a new shift rotation that would change all 12-hour shifts and the ratio of RNs to licensed practical nurses in the unit. In addition, it was already accommodating two people on straight day shifts in the unit and said it couldn’t have anyone else working straight days without creating an “unsustainable workload for the unit manager in rebalancing lines” and “challenges in sustaining safe RN staffing levels on nights.”
In December 2017, a vacancy in the hospital’s pediatric cardiac intensive care unit opened that involved day shift work, so the hospital held the position for Lorenzen. She transferred to the unit three months later in early March 2018.
Lorenzen matched up well with the new position and the hospital felt the other unit would benefit from her experience and skill, but the union filed a grievance over the transfer. It claimed that the hospital could have accommodated Lorenzen on unit 4E4, where she had worked for 10 years, and transferring her violated the collective agreement and discriminated against her with respect to the terms of her employment set out in her offer letter for the position on 4E4.
The arbitration board noted that while the interests of an employee seeking accommodation by remaining in their original position is “a factor to consider,” the law didn’t require employers to establish undue hardship in “a local accommodation” before considering other options such as a transfer. If it did, it would create a “two-step process” where “a local accommodation with disruption just short of undue hardship would prevail over other options that could be achieved with far less disruption” that would distort the accommodation process that involves a balance of the interests of both the employer and employee, said the board.
The board found that the hospital’s reasons for denying permanent accommodation in unit 4E4 for Lorenzen were legitimate, stating that although Lorenzen was temporarily accommodated on her regular unit, the staffing was out of balance and it wasn’t sustainable after the staffing rotation was changed to meet patient needs.
The board also found that the hospital met its duty to accommodate by temporarily accommodating Lorenzen on unit 4E4 until it found a more permanent option on another unit, and then assigning her to that position.
“We find it was open to the employer, after weighing its ability to accommodate within unit 4E4, and finding significant hardship, to look for other alternatives that met her needs but with far less impact on its institutional and patient care needs,” said the board.
Reference: Alberta Health Services and UNA. Andrew Sims, Jacquie Wolff, Blair Bukmeier — arbitrators. Monica Bokenfohr for employer. Katie McGreer for union. May 6, 2020. 2020 CarswellAlta 1112
