Accommodation has its limits for B.C. pulp, paper company

A British Columbia company would suffer undue hardship if it had to put a worker back into his safety-sensitive position when the worker’s medical restrictions prevented him from performing his regular duties, an arbitrator has ruled.

Mike McHale was a pipefitter for Cariboo Pulp and Paper, a company that operates a pulp mill in Quesnel, B.C.

On March 29, 2017, McHale was working in a dark and confined area of the mill’s steam plant when a pipe exploded. He suffered burns and was off work for four months, receiving benefits from WorkSafeBC.

McHale’s doctor cleared him to return to work on Aug. 8 on a part-time basis with reduced exposure to dust and chemicals. After two weeks, he could return to regular duties as long as he avoided “chemical and fume exposure.”

Cariboo accommodated McHale by assigning him to work in the outside area of the mill, where he helped maintain the fire suppression system and performed other general maintenance tasks.

In 2018, McHale was told to work in the steam plant during a maintenance shutdown the next day. McHale refused, saying that the gasses in the plant could affect his condition. The union advised that McHale was afraid to work in the steam or bleach plant after the accident, so McHale was assigned to the machine room during the shutdown.

In April, McHale was diagnosed with post-traumatic stress disorder (PTSD). In October, he suffered a non-occupational injury and was off work until Dec. 6. McHale returned to work with a different supervisor who assigned him to work in a confined space that triggered his PTSD. He went on medical leave for two months.

The union provided Cariboo with his PTSD diagnosis that recommended McHale be at least temporarily restricted from working in enclosed areas and on pipes that could explode and permanently restricted from working in the area where the accident happened.

Cariboo expressed concern about consistent pipefitting work being available with McHale’s restrictions. Multiple return-to-work plans were proposed that involved gradual progression to his regular duties in the steam and bleach plants. However, on May 1, 2019, WorkSafeBC determined that McHale’s PTSD was permanent and prevented him from performing his pre-injury job.

In the summer of 2019, Cariboo, the union, and McHale discussed accommodation. Cariboo said he couldn’t work in the fire suppression position because he was restricted from working in the steam and bleach plants. In addition, all outside work was going to be assigned by different supervisors, so there wasn’t sufficient outside work for one permanent full-time pipefitter position. A millwright apprenticeship was discussed, but it wasn’t feasible for McHale to fill it with his regular salary.

McHale eventually accepted a labourer position at a significantly lower wage, which Cariboo said was the only full-time position available that met his restrictions. The union filed a grievance claiming Cariboo didn’t meet its duty to accommodate.

The arbitrator found that Cariboo reasonably relied on the WorkSafeBC decision that McHale couldn’t work in the bleach or steam plant. There were multiple return-to-work plans that intended to ease him into regular work, but these kept getting derailed.

The arbitrator also found that it would have been undue hardship to put McHale in the fire suppression role, as someone in that critical safety role would have to be able to work in all areas of the mill. The millwright apprenticeship would also be undue hardship, as “it is generally considered unreasonable to require an employer to provide training for a different position for accommodation,” the arbitrator said.

The fact that McHale was accommodated working as a pipefitter outside didn’t mean it could work as permanent accommodation, said the arbitrator, noting that full-time pipefitter duties included working in the steam and bleach plants.

The arbitrator found that Cariboo made reasonable efforts to accommodate McHale.