Nobody’s perfect and neither is accommodation
Disability accommodation is a co-operative effort; neither side has to get what it wants for it to be reasonable
Feb 13, 2018
An arbitrator found CPR didn’t fulfill its duty to accommodate and, despite the railway’s protests over the last-minute information, it should have implemented a graduated return-to-work plan. REUTERS/Todd Korol
By Jeffrey Smith
When an employee has to take medical leave, it can cause some headaches for the employer. And if that employee comes back to work requiring accommodation in the form of modified duties or shorter hours for a period of time, the employer must do some more juggling. Since disability is a protected ground under human rights legislation, employers don’t really have a choice but to accommodate in such circumstances.
It’s also been established that the accommodation process is a two-way street. Employers have an obligation to examine all possible avenues of accommodation to keep the employee working, but employees also have an obligation to participate in the process. This means working with the employer to come up with a reasonable accommodation plan, as well as providing appropriate medical information.
The medical information provided doesn’t have to be extensive to the point it violates the employee’s right to privacy, but just enough to let the employer know the employee’s capabilities and restrictions, along with how long any restrictions are expected to be in effect.
There have been cases where employees have claimed they weren’t being accommodated when in fact the employer was making reasonable efforts and the employee wasn’t getting the exact solution she wanted. Accommodation doesn’t have to be perfect and exactly what the employee wants, but rather objectively reasonable. This is also applies on the flip side, when employers may not be completely happy with the extent of the medical information they’re getting, but it should be enough to develop an accommodation plan.
Take the recent case of a Canadian Pacific Railway (CPR) worker who had to take a medical leave of absence due to a back injury. He remained in touch with CPR while he underwent medical assessments and provided functional abilities forms and doctor’s notes. He had an assessment done about three months after the injury that stated he might be able to return in another three months, giving a date of June 6. The worker was also granted workers’ compensation benefits until June 4, so CPR planned for the worker to be back to work as normal in the first week of June.
However, a couple of months later, shortly before the worker’s scheduled return date, he submitted a functional abilities form recommending a gradual return to work and a doctor’s note recommending the worker start with two hours per day for one week, then increase by two hours per day each week until he reached a full eight hours per day.
CPR was thrown for a bit of a loop and requested more medical information, and the worker provided another doctor’s note recommending a different graduated work schedule of four hours a day for two weeks, six hours a day for two more weeks, and then eight hours a day after that. CPR refused to implement a graduated schedule and the worker remained off work for another two months.
An arbitrator found CPR didn’t fulfill its duty to accommodate and, despite the railway’s protests over the last-minute information, it should have implemented a graduated return-to-work plan. The original return-to-work date was only a suggestion and there was no guarantee the worker would be at full abilities at that time, said the arbitrator.
The information the worker provided shortly before the return-to-work date kept CPR up to date and was plenty for it to plan the worker’s accommodation: see Canadian Pacific Railway and Teamsters Canada Rail Conference (Robinson), Re, 2017 CarswellNat 7905 (Can. Railway Office of Arb. & Dispute Res.).
Accommodation isn’t always convenient — and probably isn’t most of the time. But employees deserve to be protected when they have a need for it, and it’s probably in the employer’s best interests in the long run to accommodate whenever possible. Accommodation works both ways — it doesn’t have to be perfect, just reasonable for both sides.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.