Providing medical reports to support absence part of employee’s duty
A railway worker didn’t live up to his part of the accommodation process when he failed to respond to his employer’s requests for updated medical information, justifying the employer’s closure of his employment file, the Canadian Railway Office of Arbitration and Dispute Resolution has ruled.
The worker was an employee of the Canadian Pacific Railway Company (CP) and became subject to medical restrictions in 2013 that prevented him from working his regular job. Starting in October of that year, CP began accommodating the worker’s restrictions.
As part of the accommodation process, CP required the worker to provide a functional abilities form on a regular basis to support his continued absence.
In May 2014, CP’s occupational health services (OHS) department requested an updated functional abilities form. On May 12, CP wrote to the worker asking him to have his doctor fill out the form as requested.
It also stated that if he didn’t provide the form, his employment record might be closed. CP copied the Teamsters Canada Rail Conference (TCRC), its union, on the request to keep it informed.
The worker complied with the request and submitted the updated form shortly thereafter.
A few months later, in October, the OHS department requested a new functional abilities form from the worker. The department left him two messages on his voicemail, but the worker didn’t respond.
OHS followed up with a registered letter a couple of weeks later advising the worker that his file might be closed if he didn’t provide the updated form.
Updated medical information stopped coming in
The worker signed for the registered letter on Nov. 15 — confirming he had received it — but didn’t contact the OHS department. OHS contacted TCRC to see if it had any information about the worker, but the union’s local chairperson didn’t have any new information. The chairperson said he hadn’t heard from the worker, but thought he might be taking some schooling.
CP heard nothing from the worker for the next few months, so in May 2015 it started a process under the collective agreement that required the worker to attend an investigation regarding his continued absence.
However, the worker failed to attend and CP sent him an investigation letter on June 3, once again requesting his attendance.
The worker’s silence continued, so CP sent him another letter by registered mail in late June, this time forwarding a copy to the TCRC local chairperson and general chairperson.
The worker failed to respond to these latest letters, so CP sent him a final letter dated July 8, forwarding a copy to TCRC. This letter stated that the worker’s employment record with the railway had been closed.
TCRC filed a complaint, claiming CP’s use of the collective agreement provision regarding investigations to require the worker to attend a meeting turned the situation from an accommodation case into a disciplinary termination. As a result, CP failed to accommodate the worker.
In addition, TCRC said it hadn’t been included on all of the correspondence sent to the worker.
The union also said that the worker had been frustrated over the requests for updated functional abilities forms and he had been undergoing employment insurance retraining since September 2014.
The arbitrator agreed that CP’s use of the collective agreement made the nature of the situation less clear, but found it remained an accommodation case. CP’s correspondence always referred to closing the worker’s employment file and never to any disciplinary measures or outright termination of employment.
In addition, the subject of the letters was always about a new functional abilities form for the purposes of continuing the accommodation.
The main reason CP used the collective agreement was to get an explanation from the worker as to why he stopped providing medical information, said the arbitrator.
The arbitrator also found that while CP didn’t include TCRC on all correspondence to the worker, the union was aware of the worker’s failure to provide updated information fairly early on.
In addition, CP sent a copy of the last investigation letter in late June to TCRC, so it had official notice of what was going on before CP sent the final letter regarding the closure of the worker’s file in July.
The arbitrator found the worker’s feelings of frustration and his employment insurance retraining program didn’t justify his “complete failure to respond to CP’s multiple requests for information.”
The arbitrator determined that CP was justified in closing the worker’s employment file for failure to provide medical information to justify his continued absence from work.
“The duty to accommodate does not apply only to the employer. The employee has significant obligations as well,” said the arbitrator.
“An employee loses the right to maintain an employment relationship, despite providing no services, by failing to provide the important medical information and updates an employer requires when managing an accommodated work scenario.”
For more information see:
• Canadian Pacific Railway and Teamsters Canada Rail Conference (Lunnin), Re, 2016 CarswellNat 6522 (Can. Railway Office of Arb. & Dispute Res.)
