Accommodated worker fights for tougher job

Worker’s temporary physical limitations made him unable to meet requirements for new position but job should be his when he’s medically cleared: Board

An Ontario worker being accommodated for an injury should have been hired for a new position based on his seniority, but not until he provided clear medical evidence he could meet the job requirements, the Ontario Arbitration Board has ruled.

Michael Hewitt, a 15-year employee at Bimeda Animal Health, a producer of veterinary products in Cambridge, Ont., was working on Oct. 11, 2007 when his right arm began to swell. The swelling persisted the next day and he went to the hospital, where he was diagnosed with a blood clot in his right shoulder. Hewitt was off work for two months while he received treatment to dissolve the clot.

Restricted to light duties

Hewitt returned to work on Dec. 11, 2007, with a medical note saying he should initially be limited to light duties and avoid carrying weights heavier than five pounds for a period of six months. Bimeda accommodated this condition and he began work in his old department, then was transferred to another where he did other light work.

His blood clot issues seemed to improve and Hewitt applied for a position in January 2008 that required lifting weight up to 26 pounds. He hadn’t supplied any medical evidence that his condition had changed so Bimeda denied him the job on the grounds the duties of the position were “well beyond” the physical limitations it had for him.

Hewitt filed a grievance, arguing since he had seniority, Bimeda should have acted according to the collective agreement and considered him for the position based on the fact his limitations were temporary. The collective agreement also allowed for Bimeda to fill the position temporarily to cover a leave of absence due to sickness or injury.

Hewitt then produced a doctor’s certificate that said effective April 2008 he could lift up to 26 pounds if he used both hands. This clouded his status for Bimeda because his original note stated his limitation to five pounds was to last until June. Faced with conflicting medical information, Bimeda refused to consider Hewitt for the new position, particularly since the second note seemed suspiciously tailored to the requirements of the job.

Bimeda and the union finally agreed to have Hewitt undergo a third party assessment of his functional abilities at the Canadian Back Institute on Aug. 21, 2008. The next day, the institute issued its report which stated Hewitt was unable to perform the duties of the new position overall, but was able to do some of the tasks. Bimeda requested the opinion of Hewitt’s doctor on the risk of giving Hewitt the position. However, the doctor didn’t respond by the deadline and Bimeda denied his grievance.

Since Hewitt and the union didn’t seek an immediate placement into the position, but rather a placement in the future, the board found they agreed Hewitt wasn’t capable of meeting its physical requirements at the time. The board noted Bimeda had a duty as an employer under the Occupational Health and Safety Act to ensure employees work safely and are healthy enough to return to work, giving it good reason to be cautious in ensuring it had clear medical evidence Hewitt could safely work in the new position.

The board also found there was no human rights violation because Hewitt was already being accommodated in his employment and the union had agreed medical evidence was required before he could be considered for the position.

Hewitt was not on medical leave; he was back at work in an accommodated position so that aspect of the collective agreement didn’t apply.

Seniority overrode temporary limitiations

However, Hewitt did have seniority and, according to the collective agreement, should be awarded the position had he been healthy. The collective agreement also provided for a period of training and a candidate should begin a new position “no later than eight weeks from their notification of appointment.” This, the board said, meant “a successful applicant need not be readily or immediately qualified for (the) new position.”

With this consideration from the collective agreement, the board found Bimeda was required to offer Hewitt the new position based on his seniority and the fact that, though he wasn’t immediately able to do the job, he would be able to after a short period of time.

However, the board found Bimeda was justified in its refusal because it didn’t have clear medical information on whether Hewitt was healthy enough to do the job. Therefore, the board determined neither the employer nor the employee were at fault.

Bimeda was ordered to place Hewitt into the new position once he provided medical evidence confirming he could safely do the job and Hewitt was ordered to obtain clear evidence to that effect.

For more information see:

Bimeda-MTC Animal Health Inc. v. U.S.W., 2008 CarswellOnt 8031 (Ont. Arb. Bd.).

Latest stories