Employer Not Responsible for Stalled Accommodation

Charging that the employer was responsible for delays in accommodating a pregnant worker, the union grieved.

The first production worker at the steel mill to become pregnant, T.T. notified the employer of her status on March 23, 2010 and said that she would be unable to continue in her current job.

Three weeks later, the employer wrote to T.T. informing her that her pregnancy in and of itself was not a valid reason for not attending work. She was advised to consult her doctor and provide the company with documentation on what job tasks she could not perform. That letter was also copied to the union.

On April 27, 2010, T.T.’s doctor sent a note saying simply that T.T. was “unable to work for medical reasons” from March 23 and indefinitely.

Another note from T.T.'s doctor three days later to the employer’s short-term disability carrier was offered in support of T.T.’s claim for short-term disability. The letter claimed that there was no modified work available for her.

The application for short-term disability was denied and on June 10, 2010, T.T. filed a grievance claiming that she was denied light duties and that she was being discriminated against because of her pregnancy.

In response to the grievance, the employer asserted that it was willing to accommodate T.T., however, it had no information regarding her medical restrictions and functional limitations.

On August 24, T.T.’s doctor provided a letter to the employer outlining her restrictions and limitations. The employer then suggested to the union a number of positions that might be suitable for T.T. However, the union initially rejected the employer’s suggestions over concerns that such an accommodation would be disruptive to workers with seniority. Referencing the circumstances of two workers who had positions created for them after suffering permanent disabilities as a result of work-related injuries, the union suggested that such an approach could adopted with T.T. in order to avoid any disruption to the bargaining unit.

No obligation to create new job

The employer refused, stating that it was under no obligation to create a new position for T.T.

Before the Arbitrator, the union argued that the employer was responsible for delaying the accommodation process and it sought compensation for T.T. to cover lost wages and benefits.

The employer denied any responsibility for the delay. T.T. had simply advised the company that she was unavailable for work and provided no information with respect to her restrictions or limitations until August 24. After that point, the union was the hold up, the employer said.

While neither party acted in bad faith, inexperience clearly played a role in causing the delay, the Arbitrator said. T.T. mistakenly believed that she only needed to fill out a claim for sick leave benefits in order to advance the process of accommodation. Faced with the potential for some disruption in the bargaining unit as a result of any accommodation, the union felt that the employer was under an obligation to create a new job.

Both T.T. and the union failed to understand their obligations to facilitate and respond to reasonable offers of accommodation, the Arbitrator said. Citing Arbitrator Davie in Toronto Board of Education and Canadian Union of Public Employees on the import of the Supreme Court decision in Renaud, that Arbitrator noted: “In my view Renaud does not stand only for the proposition that the employee’s obligation is to respond reasonably to offers of accommodation initiated by the employer. The employee’s obligation to facilitate the accommodation extends to both the ‘search for accommodation’ and the ‘implementation of the proposal.’ The employee may not have the initial duty to originate a solution, but must ‘facilitate the search’ for that solution. In my view, that obligation to facilitate necessarily includes an obligation on the part of the employee to identify his/her restrictions, and the need to be accommodated, and must include keeping the employer apprised of one’s status and ability to perform work, or modified work.”

T.T. didn’t do that. “While it may have been out of her own inexperience and misunderstanding, it was [T.T.] herself who did not respond to the Company’s clear written directive to obtain detailed information from her physician with respect to her physical limitations,” the Arbitrator said. That was the reason for the delay up until August 24.

Employer not responsible for delay

Neither was the employer responsible for the delay that followed. “[A] further delay ensued largely on the basis of the inability of the Union, or certain of its members, to agree to the accommodation proposed by the Company,” the Arbitrator said.

“While the grievor’s inexperience may be unfortunate, it does not excuse her failure to provide the necessary medical information which the Company asked for. Nor can the Union fault the Company for a further delay occasioned entirely by the refusal of the local union to agree with the proposed accommodation, an accommodation which appears to have been in all respects in keeping with the expectations of the Ontario Human Rights Code and which caused no undue hardship to any Union member.”

The grievance was dismissed.

Reference: Ivaco Rolling Mills (2004) LP and United Steelworkers. Michel G. Picher — Sole Arbitrator. David Wakely for the Employer and Michael Hines for the Employer. May 14, 2010. 9 pp.

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