Duty to accommodate pregnant firefighter doesn’t include regular job duties

An Ontario municipality was not required to accommodate a pregnant firefighter in her regular position when she couldn’t perform the core duties of that position, an arbitrator has ruled.

Amanda Mallany was a first class suppression firefighter for the City of Ottawa at the city’s Station 37 since 2013. On Oct. 8, 2018, Mallany requested accommodation because she was pregnant. She wanted to continue on the 24-hour schedule as a suppression firefighter but be excluded from interior firefighting, which could involve a dangerous, oxygen-deficient atmosphere that could cause permanent adverse health effects.

The union didn’t want Mallany included as part of the station’s minimum staffing complement if she was subject to such accommodation, because the station needed two firefighters who could perform interior firefighting. As a result, the city would have to add another firefighter to each shift that Mallany worked.

Four days after the accommodation request, Mallany provided a medical note stating that she required accommodation with a restriction on interior firefighting during her pregnancy. The note added that she could otherwise remain on shift.

The city determined that the only 24-hour shift that didn’t require the potential for interior firefighting was that of driver of an air supply vehicle between different stations. The position wasn’t available at that time, but there were other jobs that weren’t on the 24-hour shift schedule. The city said it was open to discussion on reasonably modifying the hours of work for these positions.

The union filed a grievance alleging that the city discriminated against Mallany and that it wasn’t undue hardship for it to accommodate her in her position at Station 37.

On Oct. 22, the city proposed an accommodation plan that involved Mallany working in a position involving administration and modified suppression on a compressed 14-hour shift schedule. The union objected and the city followed up with a plan putting her in the role of driving an air tender/rehab vehicle, which featured a 24-hour shift schedule and no interior firefighting. This position involved responding to all fire calls within the city in a support role.

Mallany agreed to take the position, although she occasionally requested to go to Station 37 for training or to have lunch with her crew. She went on an 18-month maternity leave and returned to her regular fire suppression position afterwards. However, the union continued to pursue the discrimination grievance, maintaining that Mallany should have been accommodated in her regular position with modified duties.

The arbitrator found that it wasn’t surprising that a pregnant firefighter would be restricted from performing interior firefighting work, which was “potentially the most toxic and dangerous work” a suppression firefighter could do. Although Mallany was capable of performing the other duties of her position, the city would have to assign another firefighter to her shift to perform the interior firefighting work.

The arbitrator noted that the test of whether the city could accommodate Mallany’s request was that of undue hardship and it had been established that employers were not required to assign an extra staff person to perform the duties an employee seeking accommodation couldn’t do.

The arbitrator found that interior firefighting was “the most critical function” of Mellany’s position and it couldn’t be assigned to anyone else within the minimum complement at Station 37 without assigning an additional firefighter during her shift. In addition, the assignment of other duties during her regular shift would essentially be “make-work” duties. The duty to accommodate doesn’t require the employer to fundamentally change the nature of the work it needs done or create “make-work,” said the arbitrator.

No duty to change nature of work

The arbitrator’s finding demonstrates a key consideration in undue hardship — “whether modified duties require a fundamental change in the nature of the work that needs to be done or the replacement of the employee to get those duties performed,” says Michael Horvat, partner in the Workplace Law Group at Aird & Berlis in Toronto.

“A redundancy need not be considered, particularly when there are other duties that could be assigned that meet the employee’s restrictions and provide productive work at the same level of compensation,” says Horvat.

The arbitrator determined that the city wasn’t required to accommodate Mellany in her regular firefighter position and assigning her to the air tender/rehab vehicle operator position while maintaining her salary and shift arrangement was reasonable accommodation. This means that employers don’t always have to determine if an employee has to be accommodated in their regular position before looking elsewhere in the organization, says Horvat.

“The arbitrator rejected a mandatory two-step approach and approved of the general law that an employer could look to determine accommodation within the organization first, but that the reasonableness of such accommodation would be judged or compared to a less disruptive accommodation, if possible, within the home position — a more holistic one-step approach that considers operative requirements, not just employee preference.”

In addition, the decision reinforces the concept that reasonable accommodation doesn’t require the employee’s agreement, says Horvat.

“As set out in this case, neither employee agreement nor even preference is a prerequisite to permitted accommodation.”

See Ottawa (City) and Ottawa Professional Fire Fighters Assn. (Mallany), Re, 2021 CarswellOnt 18684.