Accommodation request for shorter commute

Employee claimed long commute aggravated medical conditions

This instalment of You Make the Call features an employee who requested accommodation by being allowed to work from home every day.

Joseph Yue worked for the Bank of Montreal (BMO) as a project manager at its headquarters at First Canadian Place in Toronto for more than 30 years. In 1992, Yue moved to Barrie, Ont., about 100 km north of Toronto, and commuted to Toronto every day, taking about two hours each way. His entire team was located at First Canadian Place.

In 2002, BMO had telecommuting arrangements that allowed some employees to work at a location other than the main office, but these were discontinued in 2004.

In the fall of 2011 and the spring of 2012, Yue worked on a project that allowed him to work out of BMO’s computer complex in Barrie twice a week, with him commuting to Toronto the other three workdays each week. Yue confirmed with BMO that this arrangement would continue for the duration of the project, which would end in May 2012. Occasionally, Yue’s supervisor allowed him to work extra days in Barrie.

Yue had some disappointment over various issues including salary upgrades, workload, and reporting requirements. He informed his supervisor that sometimes he didn’t feel well because of hives, allergies, and high blood pressure.

On Feb. 29, 2012, Yue provided BMO with a note from his doctor that stated he had an illness that was aggravated by inadequate rest and travelling between Barrie and Toronto. The note further said that “it is advisable for him to work in Barrie five days a week.” Yue also informed his supervisor that he had been “ordered to stay in (Barrie) for an entire month to see if my health would improve, if not, I will be applying for short-term disability (STD) to help me recover.”

BMO told Yue its policy required Yue’s doctor to complete a form and send it to its accommodation and benefits provider before it would consider his request. Yue was allowed to work in Barrie for 10 business days until the benefits provider received the form and made a recommendation.

Yue’s doctor sent the form, saying Yue suffered from hypertension and eczema and “it’s too stressful for him to travel between Barrie and Toronto. He can’t get enough rest. Stress aggravates both his hypertension and exzema.” The doctor concluded that Yue should avoid travelling long distances, such as that between Barrie and Toronto.”

Yue was in a motor vehicle accident on March 7 with minor injuries. He was back at work in Barrie two days later.

The benefits provider denied the request for accommodation on March 23, saying the medical documentation didn’t support his claim. Three days later, Yue’s doctor submitted a statement saying Yue had suffered whiplash and injuries to his back, wrist and knee in the accident and commuting to Toronto would aggravate these injuries along with the hypertension and eczema.

The benefits provider rejected the second claim as well, suggesting an ergonomic assessment be conducted and a gradual reintegration for Yue, starting with two days in Toronto, the first week, three days the second week, and so on until he was back full-time.

Yue refused the transition plan, saying he would be starting STD on April 2. He applied for STD with the same information he had already submitted, but this claim was also denied by the benefits provider.

BMO informed Yue his leave was now unauthorized and he had a choice of appealing the claim rejections, applying for another type of leave, or returning to work.

Yue didn’t take any of those choices and instead filed a complaint that BMO constructively dismissed him by failing to accommodate his request to work full-time in Barrie.

You Make the Call

Did BMO have the right to deny Yue’s request?
Did BMO constructively dismiss Yue when his request was denied?

If you said BMO could deny the request, you’re right. The adjudicator agreed with BMO that the medical documentation Yue provided was insufficient to support the accommodation he requested. The adjudicator pointed out that the initial doctor’s note indicated it was advisable for Yue to work in Barrie five times a week, but not a medical necessity. There were no travel or movement restrictions specified, other than simply that he couldn’t commute to and from Toronto, and there was no link established between Yue’s conditions and an inability to travel for long periods, said the adjudicator.

“If Mr. Yue’s eczema (and the record here showed ‘slight improvement’ in any event) and hypertension (and there was agreement that stress can increase one’s blood pressure) medically required that he travel less or work shorter days or get more sleep, then I would have expected general restrictions on Mr. Yue’s work days aimed at a reduction of stress, rather than the very specific request which was made,” said the arbitrator. “The fact that the ‘advisable’ accommodation requested by (Yue’s doctor) only related to not commuting between Barrie and Toronto made the entire request for accommodation questionable.”

The adjudicator found the denial of Yue’s accommodation request and STD claim was reasonable and his placement on unauthorized leave until he made a choice was not a repudication of the employment contract. As a result, there was no constructive dismissal. See Yue and Bank of Montreal, Re, 2014 CarswellNat 5875 (Can. Labour Code Adj.).

Update: The adjudicator’s decision was affirmed by the Federal Court (Aug. 26, 2015, Court file T‑1687‑14) and the Federal Court of Appeal (2016 FCA 107).

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