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Railway employee with epilepsy working in safety-sensitive position must provide additional medical documentation for employer to fashion an accommodation
Following a reinstatement order issued by an earlier arbitration decision, the employer, a continental railway company, requested additional medical documentation from the employee pertaining to his epileptic seizure disorder. The employee and the union refused to provide any of the information requested, stating that it was too intrusive and was unrelated to the accommodation process. Instead, they offered to provide a list of the employer’s questions to the employee’s neurologist. The employer refused this offer, and the parties returned to the arbitrator to adjudicate their dispute over the documents. The labour arbitrator held that the employer was entitled to the additional medical documentation requested as it was specifically related to the employee’s neurological information and fitness for work.
International Brotherhood of Electrical Workers System Council No. 11 v. Canadian Pacific Kansas City Railway, 2023 CALA 94017 (October 16, 2023) (Arbitrator Graham J. Clarke)
The employee, Mr. X, suffered from epileptic seizures.
Canadian Pacific Kansas City Railway (CPKC), the employer, requested, through its Occupational Health Services (OHS), medical documentation from the employee related to his epilepsy as he was working in a safety-sensitive position as a Signals and Communications Maintainer.
The OHS, after reviewing medical information submitted by the employee on February 12, 2023, requested additional medical documentation from the employee going back four years.
On February 24, 2023, the arbitrator issued an award ordering the employer to return the employee to his original position a Signals and Communications Maintainer.¹ The employer had earlier moved him to a lower-paying non-safety-sensitive position outside of the bargaining unit based on his medical condition.
The arbitrator found that the employer had failed to accommodate the employee, and the available medical evidence did not justify placing him in a different position with a lower rate of pay. While the medical reports raised concerns for the employer regarding safety in its operations, it was required to explain why it rejected the medical opinions of the employee’s doctors.
The arbitrator ordered the employee’s reinstatement “at least on paper” while the parties completed a proper accommodation analysis.
The employer returned the employee to his former position “on paper” and the OHS reissued its medical information request letter on March 9, 2023.
The employer requested information on the employee’s medical history specifically related to his neurological condition. The union objected to the employer's disclosure request on the basis that the information sought was unreasonably broad, unnecessarily invasive and unrelated to the issue of accommodation. Instead, it suggested that the OHS should provide a list of questions and requests for the employee’s neurologist.
Some of the requested medical information was subsequently provided by the employee to the OHS on April 14, 2023. These documents were only to be shared with the Chief Medical Officer (CMO).
On April 18, 2023, the CMO concluded that the additional medical information was insufficient to allow for an updated and informed medical fitness for duty opinion. Thus, the employee’s work limitations and restrictions remained unchanged.
The parties returned to the arbitrator to address their dispute over the required medical documentation.
In his decision, Arbitrator Graham Clarke emphasized that the duty to accommodate is an ongoing obligation. It is also a tripartite process and requires all of the parties – the employer, the union and the employee seeking an accommodation – to participate and provide the necessary documentation to facilitate the process.
In the arbitrator’s view, the employer was required to communicate its requests to the employee for medical information in a timely manner. It had failed to do this when it only advised the union on the day of the arbitration hearing about the CMO’s request for the medical evidence.
However, the union did not subsequently provide persuasive evidence to demonstrate that the employer’s request for the disputed medical information was unreasonably broad and invasive. As stated by Arbitrator Clarke:
The medical information requested focused on the possibility of epilepsy, a situation CPKC only learned about after the arbitrator’s original reinstatement order. CPKC’s request repeatedly used the term “neurological” to narrow its scope. The IBEW did not demonstrate how such evidence had no relevance to CPKC’s epilepsy concerns.
He stated that the employer’s request for further neurological medical information was neither extreme nor unreasonable. Indeed, the medical information was relevant for the appropriate medical experts tasked with assessing the employee’s situation. In his view, the request was specific and consistent with the need for an individual assessment as discussed in AH822 (the earlier arbitration award), which referenced a 2006 ruling on medical evidence respecting epilepsy:²
Individuals with epilepsy or other epileptic seizures must be assessed with regard to their suitability for a particular position. The nature of the duties and responsibilities associated with their specific Safety Critical Position must be closely evaluated before any final determination of their fitness for duty.
The union’s suggested alternative approach – which would have required the OHS to generate a list of questions to be provided to the employee’s neurologist – was not the only acceptable option for medical disclosure. The arbitrator stated that a full understanding of the relevant medical facts which was available through the employee’s pre-existing medical documentation would be helpful to the OHS in a future discussion with the employee’s neurologist about the employee’s limitations.
In addition to ordering the medical documentation requested, Arbitrator Clarke held that an independent medical examination may also be an appropriate and reasonable measure for the parties to employ to resolve their current impasse.
Ultimately, Arbitrator Clarke dismissed the union’s motion contesting the OHS’ request for further medical information. As he stated:
That information does not appear extreme or unreasonable. OHS has focused its request on neurological information which appears relevant to its post-AH822 concerns about a possible epilepsy diagnosis.
The arbitrator noted that it was possible that the employee’s diagnosis of epilepsy would not be a barrier to enabling him to perform the duties in a safety-sensitive position, with or without an accommodation. However, this determination cannot be made without the OHS receiving the requested medical information from the employee.
Implications for Employers
Employers are entitled to receive sufficient medical information from an employee in order to be able to make an informed and accurate assessment of the health and safety risks accompanying an accommodation. When requesting such information, employers must make sure that their request is broad enough to enable it to make a reasoned decision, but still narrow enough to avoid breaching an employee’s privacy rights. Prompt and continuous communication between the parties is required and employers must make timely demands for any required medical information.
Implications for Unions
Employer requests for medical information always invoke the employee’s right to privacy. Because the law recognizes the special sensitivity over medical records, it only requires employees to release medical information that is specifically tailored to accommodating the employee in a particular position, and which can only be reviewed on a need-to-know basis by the smallest possible circle of managers and decision-makers. However, offers by a union to provide a list of questions to an employee’s doctor may be insufficient when the employer's request is for specific medical documentation related to the issue. Employees must provide the employer with sufficient medical information to enable them to have informed discussions with the employee’s doctor.
¹ International Brotherhood of Electrical Workers System Council No. 11 v Canadian Pacific Railway Company, 2023 CanLII 13643 (“AH822”).
² Audet v. Canadian National Railway, 2006 CHRT 25.