Employer Must Pay for Delay in Accommodating Employee

For its failure to act on the medical information it had in order to facilitate an employee’s timely return to work, an employer was ordered to pay lost wages.

Two months following a still-birth that terminated her difficult pregnancy, G.S. sought to return to her job as a teaching assistant for a school board. As she was being treated for hypertension, G.S. approached the employer and asked to be reassigned to a school closer to her home in order to lessen the stress associated with commuting.

The board’s Health and Welfare Officer asked G.S. for additional information in support of her accommodation request and in March 2007, her doctor supplied a brief note indicating that she was being treated for hypertension. The note also contained this request: “If possible could the patient have a work location closer to home — for medical reasons.”

Request for medical information

While the board was in the process of seeking out a more suitable location for G.S., it nevertheless deemed the note to be insufficient with respect to details about restrictions and whether or not such restrictions were to be temporary or permanent. It asked for additional, detailed medical information and gave G.S. a package for her doctor that contained a letter outlining the kind of information that was required and a Functional Abilities Form (FAF) to be completed.

Returned in early April, the FAF reiterated that G.S. was being treated for hypertension but listed no limitations or restrictions on her duties. Based on its assessment of the FAF, the board’s Staffing Department concluded that there was no justification for the requested accommodation. However, the Health and Welfare Officer noted that the FAF did not address G.S.’s issues with respect to travel to and from work and sought clarification from her doctor. While her doctor responded on April 20 — advising that her “travel to work be kept as short as possible” — the ultimate decision on relocating G.S. remained with the Staffing Department.

On June 11, G.S. was told there were no assignments near her location and she was given the option of taking a post at some distance or waiting until the commencement of the new school year in September.

The union grieved and sought compensation for G.S. from March 12 — when she first attempted to return to work — to the end of the school year.

Willing to return to work

The union argued that the employer had the evidence it needed to support the accommodation request. If it needed more, the employer should have availed itself of contract provisions allowing it to have G.S. submit to an examination by its own doctor. The accommodation sought was a simple one that had no bearing on G.S.’s ability to conduct her day-to-day responsibilities. The union acknowledged that the employer had tried to help G.S. but in the end — and in part because the union had not participated in the early discussions — G.S. had lost three-and-a-half months’ pay while she was available and willing to return to work.

The employer argued that it had acted reasonably. Its Health and Welfare Officer worked with G.S. to find a suitable location pending the receipt of the necessary medical documentation. It was not unreasonable for the employer to conclude that the doctor’s vague instructions and the lack of restrictions were insufficient to support the requested accommodation. Many employees seek transfers to work locations closer to their homes and therefore transfer requests must be scrutinized carefully, the employer said.

The grievance was allowed, in part. No one was really at fault in this case, the Arbitrator said. G.S. had fallen through the cracks and it was hard to blame the employer for not pressuring her to return to work when she was claiming that getting to and from work would add stress to her recovery.

At issue was whether or not the employer had properly dealt with G.S.’s request to be accommodated.

Polite request

G.S.’s first note was insufficient to establish the need for accommodation, the Arbitrator said. While the note did identify a medical condition, it contained no clear direction and “at best … can only be read as a polite request to consider making [G.S.’s] life a little easier.” Next came the FAF on April 4, which okayed G.S.’s return to work without any restrictions and made no mention of problems with respect to getting to and from work.

However, the April 20 doctor’s note did address the issue of travel and G.S.’s condition. While the note may not have provided all the detail that may have been desired, it did serve to clarify the situation. At that point, the Arbitrator said, the employer needed to either accept that it had sufficient evidence to support the accommodation request or exercise its rights to have G.S. examined by its own doctor. It did neither. The Arbitrator ruled that G.S. could have been accommodated without undue hardship to the employer on, or soon after, April 20 and ordered the employer to compensate her from that date until the end of the school term.

Reference: Toronto District School Board and Canadian Union of Public Employees, Local 4400 Unit C. Paula Knopf — Sole Arbitrator. Brenda Bowlby for the Employer and James K. McDonald for the Union. May 21, 2010. 12 pp.

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