Worker missed 4 shifts while company tried to determine his fitness in safety-sensitive workplace
A British Columbia employer made a reasonable decision to hold a worker out of service while it waited a few days for clear medical information on the worker’s fitness for duty in a safety-sensitive workplace, an arbitrator has ruled.
Cariboo Pulp & Paper operates a pulp and paper mill in B.C., which included a railyard for shipping and receiving products. Brian Peel was an equipment operator in the mill’s material handling department, which involved safety-sensitive duties such as using a front-end wheel loader, operating a bulldozer, and doing rail car switches.
The railyard was subject to the B.C. Railway Safety Act as well as the federal Railway Safety Act — the later containing medical rules that called for periodic medical fitness for duty assessments. Such assessments were required before a worker started employment in a safety-critical position, when a worker was transferred to such a position, and every five years until the age of 40 and every three years thereafter. A “safety-critical position” was defined as any job directly engaged in the operation of trains or rail traffic control.
A B.C. employer’s request for more medical information was not discrimination, according to a human rights tribunal.
Peel was required to undergo a fitness for duty assessment every three years. In a July 2019 assessment, his doctor wrote that it was uncertain if Peel had a medical condition likely to pose a threat to railway safety and indicated the need for further assessment. The doctor added hypertension, valvular heart disease, and “adjustment disorder post-matrimonial breakdown” to the list of medical conditions.
Two days later, on July 12, Cariboo informed Peel that it was uncertain whether he was fit to work and he would be held out of service. Peel signed a medical release allowing the company to follow up with his doctor. However, Cariboo’s attempts to contact Peel’s doctor were unsuccessful, so it provided Peel with a weekly indemnity form. It held him off work for four shifts from July 13 to 16.
On July 18, Peel saw his doctor, who advised that he didn’t consider Peel to be medically unfit for work so he couldn’t sign the weekly indemnity form.
Peel informed Cariboo about the situation and the company’s chief medical officer contacted Peel’s doctor himself. He determined that Peel was fit to work in a safety-sensitive position but not a safety-critical one. Peel returned to work on July 20 but not in the railyard.
The union filed a grievance claiming that Cariboo didn’t have legal justification to prevent Peel from working for the shifts he missed and discriminated against him on the grounds of disability.
The arbitrator found that Cariboo had a reasonable concern about Peel’s fitness to work in his equipment operator position, based on the information it had received. It tried to contact Peel’s doctor in a timely manner before Peel’s July 13 shift, but it was unsuccessful. Cariboo also had a reasonable basis for asking for more information after Peel’s doctor indicated additional medical conditions and a need for further assessment, the arbitrator said.
Based on the workplace safety implications in the mill’s safety-sensitive environment and the “not trivial health concerns” indicated by Peel’s doctor, Cariboo was justified in holding Peel out of service until it confirmed his fitness for duty, said the arbitrator in dismissing the grievance. See Cariboo Pulp & Paper Co. and Unifor, Local 1115 (Peel), Re.
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