Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on December 6, 2018 within the category "Medical-legal issues". 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.


An Ontario arbitrator concluded that while an employer has the authority to seek medical information from the grievor, once sufficient medical information is available to confirm a return to work with modifications, the employer has a duty to accommodate.  While second opinions on medical reports are available, an employer must have sufficient reason for failing to act on clear medical evidence in order to meet its duty to accommodate.

Legal Citation

International Union of Operating Engineers, Local 772 (IUOE) v University of Ottawa, 2018 CanLII 105364 (ONLA) (Clarke), November 1, 2018. 

Facts

The grievor held a safety-sensitive position of a truck driver delivering research materials, medical samples, and live animals to various locations since 2012.  

In late 2015, the grievor suffered significant mental health issues which affected his personality and his ability to perform his regular work. 

He took a sick leave in October 2015. 

In January 2016, the employer held a return-to-work meeting with the grievor and a union representative, which resulted in his progressive return to work.  

Throughout 2016, the employer noted both a change in the grievor’s personality and various performance issues, including improper use of the punch clock, where to park the employer’s vehicles, the need to deliver the lab animals immediately after pickup, and a certain “nonchalance” with regard to his duties. 

In April 2016, the employer’s nurse advisor sought consent from the grievor so that she could ask his treating psychiatrist for further information.  The medical evidence indicated that the grievor could perform his all his duties. 

In January 2017, the grievor left work. 

Following this absence, the grievor’s general physician provided a medical report which indicated that the grievor could return to work part-time as of March 14, 2017 but he could not perform any team leader functions.  

The grievor’s psychiatrist also advised the employer that the grievor could return to work safely, that the limits to doing supervisory work were permanent, and that the grievor could perform his regular driving duties full-time in the near future.

The employer ultimately advised the grievor in late May 2017 that it could not accommodate his current limitations, though the employee and union made it clear that he wanted to work and, instead, the employer suggested the grievor apply for long-term disability benefits.  

The union filed a grievance alleging that the employer failed to accommodate an employee’s return to work. 

In October 2017, an independent medical examination was conducted, which supported the notion that the grievor could continue as a driver with managerial limitations.  

On February 28, 2018, the grievor’s psychiatrist provided her opinion that the employee could return to work.  

Notwithstanding the psychiatrist’s opinion and that of the long-term disability benefits provider, the grievor was not accommodated until he completed a neuropsychological exam.  The exam results confirmed the medical evidence of the psychiatrist and the long-term disability benefits provider.  

The grievor returned to full-time hours on June 11, 2018. 

Analysis

Arbitrator Clarke approached the grievance as issues arising before the October 2017 independent medical examination and issues arising afterwards, as the medical evidence remained unchanged from the examination to the grievor’s return to work date.  

The employer and the union agreed on the general principles in duty to accommodate, as outlined by the Supreme Court of Canada decision in Stewart v Elk Valley Coal Corp.  

While the employer did not contest that the union made a case for prima facie discrimination, it argued that it had accommodated the employee to the point of undue hardship. 

The arbitrator relied on a number of principles from previous jurisprudence pertaining to the duty to accommodate, including the principle that the duty to accommodate places obligations on both the employer and the employee, and the principle that the arbitrator’s analysis in a duty to accommodate case must examine the entire period of the accommodation.  

With respect to pre-October 2017, the union argued that the medical evidence supported the grievor’s return to work in March 2017.  The employer submitted that as a result of the grievor’s safety-sensitive position, it had legitimate safety concerns, given that the medical evidence established that the employee had some important cognitive limitations. 

Arbitrator Clarke agreed that the employer’s concerns about the grievor’s health prior to the October 2017 independent medical examination were not frivolous and that it was reasonable for the employer to have had questions about the driving functions given what appeared to be significant limitations listed in the medical reports. 

However, Arbitrator Clarke concluded that, after the October 2017 independent medical examination, the employer failed to accommodate the grievor.  Though the employer was relying on the long-term disability benefits provider, the duty to accommodate cannot be contracted out.  

No neuropsychological exam was required prior to the grievor’s return to work, and the employer had the medical information necessary to provide accommodation.  Arbitrator Clarke stated, in this regard, that:

[87, 89]: …It is one thing to decide to get a second opinion when the medical evidence does not seem to reflect the reality of what had occurred for a significant period of time in the workplace.  It is entirely another matter, however, when the medical evidence remains unanimous, but an employer still fails to act on it…While getting a second opinion to verify whether an employee in a safety sensitive position could perform his driving duties on public roads is understandable, an employer which fails to act on the subsequent unanimous medical evidence will have trouble meeting its burden of proof.

On the above basis, Arbitrator Clarke concluded that, while the employer had various reasons to seek medical information from the grievor, it failed to accommodate the employee once it had, or could have had, sufficient medical information to confirm a return to work with a relatively slight modification to his duties.

Implications for Employers

Employers are entitled to request and obtain medical information from an employee who seeks accommodation.  However, upon receipt of medical information that clearly outlines the restrictions, the employer must have a valid reason for seeking a second opinion, rejecting the return-to-work plan, or any accommodation suggested therein. 

Implications for Unions

The duty to accommodate requires participation from the union, employee and employer.  The duty to accommodate places an obligation on the employee to assist the employer as it makes informed decisions on the medical evidence provided by the employee.  Both the union and the employee have an important role to play in the search for accommodation insofar as relevant information is requested by the employer.