Corporation made efforts to find modified work, but took 5-month break while waiting for information; Worker received no pay during break
Employers are legally obligated to accommodate an injured employee's medical restrictions whenever possible, such as with modified duties. It's not always easy, but if bumps are encountered during the accommodation process, the employer can't simply step back for awhile and wait for things to improve.
Canada Post must pay a former employee more than $38,000 for a gap in its accommodation efforts during which the injured employee received no work or pay, the Canadian Human Rights Tribunal has ruled.
Glenn Brunskill joined Canada Post Corporation (CPC) in 1992, filling various positions including postal clerk and letter carrier. At one point during his employment, Brunskill was working as a letter carrier when he fell down while carrying a heavy double bag of mail. The fall shocked his spine and the injury required a modification of his duties. CPC moved him into a clerk position at the CPC facility in Malton, Ont., which involved mostly sedentary work. Brunskill was eventually able to resume letter carrier duties when his back condition improved.
On March 1, 2013, while employed as a letter carrier at CPC’s facility in Brampton, Ont., CPC dismissed him. After the union grieved the dismissal, he reached a settlement with CPC that reinstated him to his position as of March 20. However, when he returned to work on that day, he informed CPC that a prior back injury had flared up and he was unable to perform the duties of a letter carrier.
CPC provided temporary modified duties — which it made sure Brunskill could perform safely — while its third-party benefits provider determined Brunskill’s medical limitations. The role was the same one Brunskill had performed when he had been injured previously — a clerk at the Malton facility.
Brunskill worked in the modified position for several months. CPC received his limitations on Aug. 21, which included restrictions on the amount of time spent standing or sitting as well as pulling and pushing objects. Since the limitations were compatable with the clerk position Brunskill was already performing, he continued to work in the clerk position.
On Sept. 13, 2013, CPC closed the Malton facility due to restructuring and Brunskill’s position was eliminated. It was unable to find another role compatible with Brunskill’s limitations, so it recommended he claim short-term disability (STD) benefits) — the usual practice when an employee with medical restrictions can’t be accommodated.
A couple of weeks later, CPC found a position with modified duties that fit with Brunskill’s medical restrictions — video encoding system clerk. However, he had to successfully complete training in order to fill the position, which began on Sept. 30.
Brunskill was unable to pass the first part of the training to improve his keyboarding skills, so CPC offered him additional training. However, both CPC and Brunskill realized that he wasn’t likely going to complete the training successfully, so CPC began searching for another position for him while he once again went on STD benefits.
The third-party benefits provider continued to approve Brunskill’s STD benefits until his eligibility elapsed on April 13, 2014. At this point, it became evident that Brunskill hadn’t received an application for long-term disability (LTD) benefits, which CPC had sent two months earlier. As a result, Brunskill had no income when his STD benefits ended.
STD benefits lapsed; LTD benefits denied
Brunskill eventually completed an application for LTD benefits, but it was denied by the benefits provider. CPC requested an update to his medical restrictions so it could continue to search for modified work for him, but Brunskill’s doctor was away. Eventually, on July 13, 2014, Brunskill provided a note from another doctor that said he could return to work at either of his former positions of clerk or delivery driver until his regular doctor returned in mid-August.
However, for CPC this wasn’t an update of Brunskill’s restrictions and neither of the stated positions were available. As a result, it was unable to provide work for Brunskill until his regular doctor provided an update on Aug. 26.
Though CPC had been led to believe Brunskill’s restrictions hadn’t changed, they had in fact increased, with greater restrictions on lifting and walking. CPC found a postal clerk position that met Brunskill’s new restrictions, but it was a part-time role working four hours a day with an assistant for lifting heavier objects.
Brunskill wasn’t aware it was a part-time position until after he reported to work on Sept. 10. He was upset and felt CPC was trying to demote him. He sent several emails to his union and management, insisting CPC was required to accommodate him in a full-time position. He stopped working and used up all of his annual leave and top-up credits. When this ran out on Oct. 24, Brunskill decided to retire.
Brunskill filed a human rights complaint claiming CPC failed to accommodate him and forced him to retire early, adversely affecting him in his employment because of his disability.
The tribunal noted that the Canadian Human Rights Act sets out the principle that “all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have.” In this case, Brunskill wanted to continue working for CPC as he had before his injury and as other CPC employees were able to do.
Exclusion from workplace was adverse differentiation
The tribunal found that CPC aversely differentiated Brunskill in his employment after it eliminated his modified position in September 2013 and put him on STD benefits. When it didn’t find him a position, it excluded him from the workplace, though it tried to accommodate him with unsuccessful training and searches for other modified positions. However, after Brunskill’s STD benefits lapsed in April 2014, nothing was done while CPC waited for medical information, though Brunskill wasn’t receiving any pay because of his LTD benefits application had been denied.
The tribunal also found that CPC worked to accommodate Brunskill after he revealed his injury, finding a modified position and then trying to train him for another one when the first position was eliminated. It became problematic when Brunskill couldn’t complete the training and had to go on STD benefits. However, the STD benefits didn’t relieve CPC of the duty to accommodate, the tribunal said.
CPC tried to argue that Brunskill delayed the accommodation process by not providing updated medical information until late August 2014, but the tribunal disagreed. Brunskill provided information from another doctor before then that indicated he could perform similar modified duties, and he provided updated information from his doctor as soon as he could. Brunskill did what he could to facilitate the accommodation process, the tribunal said.
“Even though CPC requested an update of (Brunskill’s) medical restrictions, it could still have relied on the medical restrictions dated August 2013 and confirmed until April 13, 2014, while it was waiting for the updated information to be provided,” said the tribunal. “CPC should have continued to conduct job searches based on the information in its possession.”
The tribunal also found that not only was Brunskill excluded from the workplace, it also mostly excluded him from the accommodation process. He wasn’t involved in the job searches or any dialogue with CPC regarding his restrictions, training, or assignments — he was just told about the decisions. This contributed to the anger Brunskill was feeling when he ultimately decided to stop working and retire.
However, the tribunal found that Brunskill’s decision to retire was hasty and it was his personal decision. Though he didn’t like the part-time role, he was back in the workplace in a position compatible with his restrictions and was able to earn pay for work. CPC wasn’t trying to demote him and it “would have been beneficial for (Brunskill) to show perseverance” in the accommodation process. Instead, he excluded himself from the accommodation process, said the tribunal.
CPC was ordered to pay Brunskill $16,145.86 for the period of April 13, 2014, to Sept. 10, 2014, from when his STD benefits ran out until he was assigned the part-time position, for its failure to accommodate him during that period. It was also required to pay $12,000 for pain and suffering it caused from its breach of the act and $10,000 in damages for reckless conduct, for a total award of $38,145.86.
For more information see:
• Glenn Brunskill v. Canada Post Corporation, 2019 CHRT 22 (Can. Human Rights Trib.).