'A creative mindset is a key aspect of the duty to accommodate'
A railway company’s failure to consider suggested jobs that met a pregnant worker’s medical restrictions didn’t fulfil the company’s duty to accommodate, an arbitrator has ruled.
“The decision provides in very clear terms that the duty to accommodate doesn’t end with the worker’s own position,” says Rich Appiah, principal of Appiah Law in Toronto. “Employers would be well advised to look beyond a disabled employee’s own position to see if accommodation can be found elsewhere, either through other positions within the organization that would suit the employee’s restrictions or other positions that could be modified.”
The worker was a conductor for Canadian National Railway (CNR) at a terminal in Prince George, BC.
In February 2013, the worker informed CNR that she was pregnant and had medical restrictions. She was restricted from performing certain conductor duties, so she requested accommodation and provided a medical note restricting her to light duties.
CNR told the worker that she would be able to receive short-term disability (STD) benefits while an accommodated position was being considered.The STD benefits would allow her to receive some pay until an accommodated position was found, although they were less than her regular wages.
Accommodated position
CNR suggested a roving utility position as accommodation, but the worker said she was concerned that it would be more demanding than her conductor job. The company said that she would be given help for the more demanding duties of the role, so the worker agreed to try it.
On Feb. 26, 2013, the worker worked as a roving utility person, but she found it to be strenuous and exhausting, as it involved walking for several hours in deep snow. After one day, she declined to continue.
The next day, CNR informed the worker that her medical note was insufficient to support a restriction for light duties and, regardless, it didn’t have any light duties available. The worker said that the Canada Labour Code entitled her to a paid leave of absence while the accommodation process was ongoing, so CNR placed her on a paid leave of absence.
The worker provided another doctor’s note on March 5 restricting her to light duties and stating that the utility position wasn’t appropriate for her. She also suggested five accommodated positions that she believed met her medical restrictions that had previously been given to other pregnant employees. Her suggestions were:
- Utility person to drive crews that had been performed by an employee with a light-duties restriction who had recently retired
- Assisting the on-the-job trainer with scheduling, paperwork, and training of new conductor trainees, in which another pregnant conductor had been previously accommodated
- Training and work as a yardmaster, for which the worker had already passed the test that was a prerequisite for training
- Assisting in the office, which other pregnant conductors had been accommodated with in the past
- Checking tracks for the carmen (car inspectors).
The worker told CNR that she had advised her doctor to include light duties in her restrictions to avoid all conductor work.
Employer declined worker’s accommodation suggestions
CNR told the worker that it couldn’t put on a yardmaster training class for one employee. It wasn’t interested in any of her other suggestions and told her that there were no light duties in the Prince George terminal. The company asked if she could relocate, but the worker was unable to because of multiple doctor’s appointments throughout her pregnancy.
The worker provided a third doctor’s note on March 8 with additional restrictions such as no standing, walking, climbing ladders, or prolonged weight bearing. At another meeting on March 15, CNR told the worker that there were no positions available in Prince George, but it would keep looking while she remained on a paid leave of absence.
However, three days later, CNR informed the worker that it couldn’t accommodate her and she was being placed on an unpaid leave of absence. It reiterated that there were no available jobs in Prince George that met her restrictions and it wasn’t “reasonably practicable to modify your own job of conductor, particularly as you have repeatedly emphasized that you wished to be relieved from conductor work.”
The worker applied for and was approved for STD benefits during her leave.
The union filed a grievance alleging that CNR failed to meet its duty to accommodate the worker to the point of undue hardship.
Worker seeking preferred accommodation: employer
CNR argued that the worker didn’t co-operate in the accommodation process and she had refused alternate work on two occasions. It also said that she was unreasonably unwilling to travel outside of Prince George and she wasn’t interested in modified conductor work. In addition, the worker appeared to be dictating her restrictions to her doctor to get the work she preferred, said the company.
The arbitrator noted that a need for accommodation and an adverse impact from the employer’s requirement must be established by the union and worker, while the employer has to establish that it took reasonable measures to accommodate to the point of undue hardship, adding that the duty to accommodate extends beyond the worker’s regular role.
The arbitrator found that the impact of the worker’s pregnancy was a disability that prevented her from performing the duties of her conductor position, leaving CNR with the onus of establishing it had met its duty to accommodate.
The arbitrator accepted that CNR had concerns that the worker was dictating to her doctor her medical limitations to shape her preferred accommodation, but found that there was no evidence that her doctor blindly accepted the worker’s direction in writing the medical notes, as it would be “unprofessional and inappropriate.” In fact, CNR was distracted by this notion and “unreasonably confined its thinking” to whether or not the conductor role could be modified without looking elsewhere in its organization, said the arbitrator.
“The duty to accommodate requires consideration of whether an employee’s own job could be modified to meet their restrictions, as well as whether there are other positions within its organization that could suit the employee as is or that could be modified to address the employee’s restrictions as a potential accommodation measure,” says Appiah. “A creative mindset is a key aspect of the duty to accommodate, so employers should keep in mind the need to be creative when considering a disabled employees accommodation needs.”
Additional medical information
If CNR had doubts about the worker’s medical information, it should have taken steps to get more that would satisfy its concerns, says Appiah.
“If it was accurate to suggest that the doctor relied on the employee’s prompting in setting out the employee’s medical restrictions, then the company could have tried to verify those restrictions by asking her to attend to an independent medical examination or by following up with the doctor for clarification and confirmation of the medical restrictions stated in the note,” he says.
“If an employer has doubts about the information in a doctor's note or the doctor's note is not thorough, then the employer is entitled to additional medical information for medical restrictions and a prognosis for a return to work with or without accommodation only, not a diagnosis.”
The arbitrator also found that CNR didn’t prove that the utility role that the worker tried for one day met her medical restrictions and it was reasonable for the worker to decline relocation, given her pregnancy and medical appointments. The company also didn’t indicate why the other positions suggested by the worker weren’t considered.
“[The worker] suggested these other positions as options for accommodation, but the company didn’t consider them or provide any evidence of its own to contradict that the positions would be inappropriate for her given her medical restrictions,” says Appiah. “To move towards that high bar of undue hardship, the employer really has to be ready to provide evidence.”
The arbitrator determined that CNR failed to make all reasonable efforts to accommodate the worker. The company was ordered to make the worker whole for any net loss from the difference in her STD benefits and her regular earnings while she was on unpaid leave during her pregnancy.
It's important to note that just because STD benefits are available to an employee, as was the case here, it doesn't mean that the employer has less of an obligation to provide the employee with accommodated work or modified duties if available, according to Appiah.
“Whether or not the STD benefits provide full indemnity or partial indemnity for the employee’s leave of absence, it doesn't alleviate the employer’s burden to accommodate,” he says.
See Canadian National Railway and Teamsters Canada Rail Conference (Migvar), Re, 2023 CarswellNat 5666.
