Sample Accommodation E-Lert
This sample Accommodation E-Lert was posted on June 1, 2023 within the category "The legal duty on employers". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.
The grievor worked as a housekeeper in an acute care hospital setting for the Interior Health Authority in British Columbia. She self-disclosed that she was entering an addiction treatment program and needed to take time off work. As a result of this disclosure, the employer’s substance abuse policy was triggered. As such, the grievor was subjected to medical monitoring, an independent medical evaluation and a last-chance agreement. The employer argued that these restrictions were necessary due to the safety-sensitive nature of the grievor’s job. The arbitrator ruled that some of these restrictions were improper and awarded the grievor damages.
Interior Health Authority v Health Employees’ Union, 2023 CanLII 19168 (BC LA), (February 1, 2023), (Arbitrator Corinn Bell)
The grievor worked as a full-time housekeeper in an acute care hospital setting for the British Columbia Interior Health Authority.
In April 2017, following two traumatic workplace incidents, the grievor started to drink heavily. She informed her manager that she needed time off work to address her substance-abuse disorder and entered a treatment program in the summer of 2017.
On September 6, 2017, the grievor successfully completed the treatment program and engaged in a return-to-work process.
Pursuant to the employer’s substance-abuse policy, the grievor had to fulfill three requirements before returning to work. The grievor was required to:
- Self-fund her ongoing medical monitoring;
- Undergo an independent medical examination (IME); and
- Enter into a last-chance agreement (LCA).
The employer justified these requirements by pointing to the safety-sensitive nature of the grievor’s job. Due to delays in the IME process, the grievor did not return to work until November 2017.
The grievor eventually returned to work, and the medical monitoring and the LCA continued for two years. A breach of any term of the LCA would have resulted in her termination. The grievor completed the two years of medical monitoring and testified at the arbitration hearing that she continued to remain sober.
In an earlier arbitration decision between the parties, the employer’s substance-abuse policy had been found to be a violation of the collective agreement for subjecting all employees to IMEs and forcing employees that self-disclosed to enter LCAs.¹ However, in this earlier award, Arbitrator John Hall took no issue with the employer’s definition of the scope of safety-sensitive positions, which essentially defined all of its jobs as safety-sensitive.
The union alleged that the employer’s requirement for the grievor to enter into a LCA, get an IME and be subject to medical monitoring constituted discrimination pursuant to the collective agreement and the B.C. Human Rights Code.
The employer replied that, because the grievor worked in a safety-sensitive position, its actions were justified. It conceded that the grievor should not have been subject to the LCA. However, it argued that, since the grievor had not been disciplined or terminated arising from the LCA requirement, she suffered no damages.
Arbitrator Corinn Bell began her decision by applying the prevailing human rights legal test in Canada established by the Supreme Court of Canada, the Moore test.²
It requires a claimant to prove three features:
- He/she is protected by a recognized human rights ground;
- He/she suffered an adverse impact; and
- The protected ground was a factor in the adverse impact.
The arbitrator ruled that all three features of the Moore test were met in this case:
…the Grievor’s substance use disorder, a disability protected by the Code, was a factor in the adverse impact she experienced pursuant to the Policy. At a very minimum in this case, I find that the Grievor’s self-disclosed substance use disorder was the only factor in the admitted erroneous requirement for her to work under a threat of termination pursuant to the LCA for a period of two years.
Arbitrator Bell held that the union had established a prima facie case of discrimination. The onus then shifted to the employer to prove that its actions constituted a bona fide occupational requirement. To accomplish this, the employer had to meet the three-part of the Meiorin test.³ This required it to prove:
- That the substance-abuse policy was adopted for a purpose rationally connected to the performance of the job;
- That it was adopted in an honest and good faith belief; and
- That it was impossible to accommodate individuals sharing the characteristics of the claimant without imposing undue hardship.
The key question to be determined by the arbitrator was whether the imposition of the LCA, the medical monitoring and the IME were justified based on the grievor’s job requirements.
She found that the employer had erroneously predicated its position on the assumption that the grievor worked in a safety-sensitive position. As she stated:
It is not sufficient to presume that a position is safety sensitive because the individuals that work in the position are located in an acute care setting and are tasked with the very important work of cleaning and infection control. In my opinion, those facts do not automatically lead one to the conclusion that the position is safety sensitive pursuant to the Policy.
Arbitrator Bell took issue with the fact the employer had automatically applied the substance-abuse policy to the grievor without determining whether her work was actually safety-sensitive. She found that, in these circumstances, the grievor performed vital work in a health care setting, but it did not rise to the level of being a safety-sensitive position.
The imposition of medical monitoring was found to be reasonable in this case because it came as a recommendation from the grievor’s medical professionals. However, Arbitrator Bell ruled that the IME was inappropriate, as the only justification for this came from the employer’s return-to-work requirements. She also concluded that there were several flaws in the employer’s IME process. These flaws included delays, the fact that the medical specialist conducting the IME was not provided with a job description and that the employer had not consulted with the union.
Arbitrator Bell also criticized the employer’s imposition of the LCA:
The Employer’s position is that because there was no breach of the LCA, there are no damages in this case. After hearing from the Grievor, and considering the circumstances of returning to work after attending in-patient treatment and attending an IME, I accept that working under threat of termination would be stressful to her, especially given the additional letter attached to the LCA respecting the work location which clearly formed part of the LCA.
Even though the grievor had not been terminated, the stress she suffered because of the improper imposition of the LCA entitled her to damages. As remedies, the arbitrator awarded the grievor lost wages for the two-month delay between her completion of the treatment program and her eventual return to work that resulted from the IME. She was also awarded $12,500 in general damages for the improper referral to an IME, the flaws in the IME process and the “erroneous imposition of a LCA.”
Implications for Employers
Just because a job description or workplace policy defines a job as being safety-sensitive does not mean that a legal decision-maker will find that it, in fact, meets that standard. Employers need to evaluate the specific duties of an employee individually to objectively assess whether the position is safety-sensitive and whether stricter workplace rules can be applied to the position. As well, employers must also be careful when requesting or drafting an LCA because an improperly imposed last-chance agreement can trigger an award of damages.
Implications for Unions
Labour arbitrators have long accepted that employees do not lose their right to privacy when they enter the workplace. Thus, unions have to carefully monitor the imposition by employers of an IME on an employee. An IME can only be justified if the medical information first supplied by an employee’s physician cannot answer vital health questions going to the employee’s ability to safely return to work, the employee’s need to remain on a disability leave, or the employee’s request for a workplace accommodation.
¹ Interior Health Authority and Health Employees’ Union (Substance Abuse Disorder Policy), 2018 CanLII 116964 (BCLA) (Arb. John Hall) (November 13, 2018).
² Moore v British Columbia (Ministry of Education), 2012 SCC 61.
³ British Columbia v British Columbia Government Service Employees’ Union (“Meiorin”),  3 SCC 3.