Accommodation leads to loss of compensation

Return to work took too long: Union

Leila Ibrahim filed a grievance against William Osler Health System in Toronto alleging her employer failed to provide her with suitable accommodated work. 

The grievance, however, was for a very specific period of time. While Ibrahim agreed the employer accommodated her when she was on sick leave and when it eventually provided her with accommodated duties, she argued it failed to accommodate her between March 7 and April 24, 2014. 

Ibrahim was absent from the workplace on the advice of her doctor from Nov. 19, 2013, until March 2, 2014, and received sick leave benefits during that period. She provided the employer with a note from her doctor recommending she return to work on a graduated basis with significant restrictions. 

Before the employer provided a temporary accommodated position, however, it required Ibrahim to undergo medical testing to better understand her medically mandated restrictions. 

Ibrahim’s union — the Ontario Nurses’ Association — agreed the law permits an employer a reasonable amount of time to provide required accommodation, but it argued the hospital failed in its duty to accommodate when Ibrahim was not permitted to return to work for several weeks. 

Ibrahim worked for the employer as a registered nurse and was suffering from neck and shoulder pain. In October 2013, her doctor recommended she be put on modified duties for eight weeks. In November 2013, her symptoms had worsened and her doctor recommended six weeks of leave. In January 2014, Ibrahim’s doctor recommended eight more weeks of leave. 

Ibrahim’s doctor was a neurosurgeon and his care was focused on her neck injury. His note recommending Ibrahim return to work in March 2014 made little mention of her shoulder because he was not involved in the treatment of that injury. Because of this lack of information, the employer requested an orthopedic IME before Ibrahim’s return to work was approved.  

Following the assessment, Ibrahim was provided with accommodated duties that would not require her to perform activities that made her repetitively elevate her arm above her shoulder level or rotate the shoulder on a repetitive basis. 

The union argued it was unreasonable for the employer to seek this further information, and it was unreasonable for the employer to seek that information through an IME when less-intrusive methods could have been used. The union requested Ibrahim be compensated for lost earnings during the period of time she waited for the employer to perform and consider the assessment before accommodating her.

The hospital, however, argued the additional information was necessary to protect Ibrahim from further injury as well as to protect patients and the hospital. 

While arbitrator Mary Lou Tims said the employer acted in an entirely reasonable manner when it asserted the need for medical clarification regarding the grievor’s injuries before returning her to work, she found the employer “overreached” in immediately seeking an IME without first attempting to obtain the necessary information in a less-intrusive manner. 

The grievance was upheld to the extent that it claimed the employer failed to accommodate by not first seeking less-intrusive means of obtaining necessary information. 

The union’s request for compensation for lost earnings was remitted to the parties. 

Reference: William Osler Health System and the Ontario Nurses’ Association. Mary Lou Tims — arbitrator. Harold Rolph for the employer, Robert Metcalfe for the union. July 3, 2015. 

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