Employer not required to accommodate worker with seizure disorder

A Parmalat Dairy and Bakery worker was off work on disability in 2009 and filed grievances claiming he had been improperly denied short-term and long-term disability benefits

A worker on long-term disability grieved after his employer said that it had no suitable job to accommodate his return to work.

B.C. was employed at Parmalat Dairy and Bakery. He was off work in 2009 and he filed grievances claiming that he had been improperly denied short-term and long-term disability benefits.

B.C. was diagnosed with seizure disorder. His grievances were resolved under the terms of a May 19, 2010 settlement agreement. The agreement required B.C. to abstain from alcohol and complete an addiction rehabilitation program. The agreement also said that B.C. could return to work once he had satisfied the company’s doctor that he was fit and able.

On May 31, 2010, the employer contacted B.C.’s doctor. The employer provided a Physical Demands Analysis (PDA) for the position of RaPack Operator and sought B.C.’s doctor’s input to help match the PDA with B.C.’s work restrictions and abilities.

Two weeks later, B.C.’s doctor replied and advised the employer that because of his seizure disorder, B.C. could not work with dangerous equipment or machines. He was also restricted from working at heights or on ladders and he was not permitted to work alone. The doctor later clarified that B.C.’s restrictions would be in place for at least one year.

The union proposed that B.C. be accommodated in one of the two full-time janitor positions at the plant.

In response, the employer sent B.C.’s doctor a list of the various job tasks for the janitor position.

Restricted from working alone

Of the nine tasks identified, B.C.’s doctor prohibited four. Two more of the nine basic tasks, such as cleaning drains, floors and sinks and collecting and compacting trash were graded as representing a high or significant risk for B.C.

However, most significantly, where the employer specified that all of the listed tasks required the employee to be able to work alone, B.C.’s doctor said that he could only work alone in circumstances where workers would at least be passing by occasionally and where there was no dangerous equipment.

The employer said that it did not have any jobs like that for B.C.

The union grieved.

The union argued that the employer could modify one of the janitorial jobs to accommodate B.C. without undue hardship. The union said that B.C. was now a low risk for seizures. He was abstaining from alcohol and he had not experienced a seizure since October 2009. The union said that B.C.’s doctor’s orders did not exactly preclude him from working alone. B.C. could work by himself as long as other people were around or passing by. The union asserted that there were enough janitorial tasks to occupy B.C. on a full-time basis, or for six hours per day at the very least.

The employer said that B.C.’s restrictions prevented him from performing the essential tasks of the janitorial position. Fundamental parts of the job were ruled out because of B.C.’s restrictions against working with dangerous machines or equipment. The other tasks were problematic because B.C. was not permitted to work out of sight of other workers. This was not realistic, the employer said, because janitors must regularly work in areas where there is no one around.

No bundled job

The employer said there was no practical way to bundle job duties from the two janitorial positions in order to create one job that B.C. could handle.

The Arbitrator agreed.

Neither of the existing janitorial jobs at the plant was consistent with B.C.’s restrictions, the Arbitrator said.

The job tasks associated with both positions required workers to regularly and routinely work away from other employees.

“As long as the grievor’s work restrictions remain as described…working in either janitor’s position continues to be inconsistent with the grievor’s restrictions. It follows that Parmalat did not fail to properly accommodate the grievor when it refused to place him in one of those janitor positions.”

The Arbitrator rejected the union’s assertion that B.C. could be accommodated on a part-time basis.

“Apart from the fact that the Employer is not required to create a part-time janitor position in order to accommodate the grievor, working on his own part-time as a janitor would still be inconsistent with the grievor’s work restrictions, since he would still have to regularly work out of sight of other employees or without other employees generally or predictably nearby to observe him as he worked.”

The grievance was dismissed.

Reference: Parmalat Dairy and Bakery Inc. and Retail Wholesale Canada, CAW Division, Local 462. Robert J. Herman — Sole Arbitrator. Bruce Toman for the Union. Paul A. Young for the Employer. August 3, 2012. 10pp.

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