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Pregnant corrections officer in training prevented from participating in use-of-force training due to safety concerns
Accommodation E-lert, posted on January 18, 2024 within the category "Accommodating pregnancy".
While undergoing orientation training as a corrections officer, the trainee disclosed to her employer that she was in her second trimester of pregnancy. To complete her probationary period, she was required to complete use-of-force training. The employee’s doctor cleared her for the training. However, the employer’s physician disagreed. The employer determined that the training could not be modified to ensure the trainee’s safety while maintaining its integrity, and placed the employee on an unpaid leave. A British Columbia arbitrator concluded that the employer was within its rights to remove the pregnant employee from the training program.
Legal Citation
Government Of British Columbia, (Ministry of Public Safety and Solicitor General) v British Columbia General Employees’ Union (Watkins grievance), 2023 BCLA 88236 (August 18, 2023) (Arbitrator Christopher Sullivan)
Facts
The employee, Kayla Watkins, began working for the employer, B.C. Corrections, at the Alouette Correctional Centre for Women in August 2018.
At the start of her employment, she was required to complete the Security Officer Training program, which began with the initial 33-day Security Officer Orientation Program.
The employee had completed all of the modules for this program except the use-of-force training.
On October 19, 2018, the employee disclosed to her employer that she was in the second trimester of pregnancy.
She expressed a desire to take the use-of-force course during her pregnancy and felt it would not hinder her progress.
The employer requested that she seek medical clearance before undergoing the use-of-force training. At an appointment with her general practitioner, the employee described the training based on information from her husband and friends who had taken the course.
The employee’s doctor cleared her to participate.
The employer doubted the veracity of the physician’s report.
It referred the employee to its own Occupational Health and Rehabilitation (OHR) department where she was examined by an OHR physician. He recommended that the employee be restricted from work tasks for the duration of the pregnancy because there was risk of direct trauma or blow to the lower abdomen. The employer’s Use of Force Coordinator stated that the training could not be modified in accordance with the contemplated restrictions while still maintaining its integrity.
Ultimately, the employer concluded that the employee could not continue with her probationary period as a Security Officer because the use-of-force training could not be modified, and there was no other position for her to be placed in, having not completed the training. It then assigned her to unpaid leave for four and a half months, until her planned maternity leave began.
The union grieved the employer's decision to place the employee on this unpaid leave.
Analysis
At the arbitration hearing, the union argued that the employer had discriminated against the employee by not accommodating her.
It asserted that placing the employee on unpaid leave was prima facie sex-based discrimination, and not based on a bona fide occupational requirement. The rule that pregnant women cannot participate in force training is not rationally connected to its goal because there is no evidence pregnant women are incapable of completing the use-of-force training. Further, she could have been accommodated in a no-contact position.
In reply, the employer submitted that its decision was grounded in a bona fide occupational requirement. Requiring recruits to take force-options training is rationally connected to ensuring they can safely and effectively restrain inmates. It was not possible, short of undue hardship, to modify the employee’s training to mitigate its risks while still achieving its safety-based objectives. The employee was in training and could not be placed into other no-contact positions as recruits are unqualified to become correctional officers if they have not been taught the jail’s operations during their probationary period.
To determine whether a prima facie case of discrimination had been made out, Arbitrator Christopher Sullivan applied the Moore discrimination test.¹ This required the employee to demonstrate that:
- She has a protected characteristic;
- She experienced an adverse impact in employment; and
- The protected characteristic was a factor in the adverse impact experienced.
He ruled that the employer’s decision was found to constitute prima facie discrimination. As a pregnant woman, the employee had a characteristic protected by the Human Rights Code’s prohibition of sex-based discrimination. The unpaid leave had adverse impacts – including loss of wages, benefits, seniority and career progress – and her pregnancy was a factor in this adverse impact as it was the key reason for the employer’s decision to place her on leave.
Arbitrator Sullivan then applied the Meiorin accommodation test² which required the employer to prove that:
- The workplace standard was adopted for a purpose rationally connected to the performance of the job;
- It was adopted in an honest and good faith belief; and
- It was impossible to accommodate individuals sharing the characteristics of the claimant without imposing undue hardship. [Emphasis added]
He accepted the employer’s position that all new recruits had to complete use-of-force training. This was rationally connected to the goal of providing security officers with the necessary skills to safely and effectively physically restrain inmates. Employees have a positive duty under the Correction Act to intervene and use force to prevent inmate misbehavior. Thus, the use-of-force training is an essential part of the probationary instruction for new employees.
The employer has shown its standard was established in good faith as force-options training is longstanding, and has been applied to recruits consistently. The employer’s decision that the employee could not take it while pregnant was grounded in evidence-based concerns for the safety of her and her unborn child.
The training could not be modified in a way that would maintain the safety of pregnant employees without risking the integrity of the training. As the arbitrator stated:
Careful consideration of the evidence on force options training’s content, inherent risks, and objectives, leads to a conclusion that the Employer properly concluded that, short of undue hardship, it could not allow the grievor to complete the training while pregnant in her second trimester. Suffice it to observe the medical evidence shows that, in the second trimester, both the grievor and her fetus were vulnerable to medical complications from impacts to her lower abdomen. [Emphasis added]
In balancing the employee’s equality and bodily autonomy with the employee’s duty to maintain a safe workplace, Arbitrator Sullivan noted:
While a pregnant woman’s Charter-protected right to choose what level of risk to her fetus she is comfortable with is an important consideration, such choice is not determinative in the present case. The Employer’s duty to ensure a safe workplace extends to the grievor herself who, as the expert evidence indicates, would be subjected to a significantly increased risk to injury by taking force options training while in her second trimester. [Emphasis added]
It was not reasonably feasible for the employer to have placed the employee in a non-inmate-facing role for her probationary period. At the time she was at a very preliminary stage of employment, and she had not even completed the initial orientation program. Putting an inexperienced trainee in such a role would jeopardize the facility’s security.
Arbitrator Sullivan ultimately dismissed the grievance, noting that the employer had made a reasonable decision based on all available medical and expert evidence.
Implications for Employers
Employers are entitled to refuse to accommodate an employee in an alternative position where it would risk the safety of the workplace. Where an employee cannot complete the necessary training for a safety-sensitive position, and there are no other available positions without the training, an employer may place the employee on unpaid leave until s/he is in a position to safely resume the completion of her training.
Implications for Unions
Employees may be required to obtain medical opinions on fitness to work or to complete training. This is particularly true for safety-sensitive positions. In obtaining medical opinions, it is vital that employees provide accurate descriptions of the work required based on employer descriptions. Part of the flaws in the union’s evidence in this case revolved around an incomplete and inaccurate explanation of the use-of-force training, which led to the arbitrator placing little weight on the evidence of the employee’s physician.
¹ Moore v British Columbia (Attorney General), 2012 SCC 61.
² British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3.
Tip Of The Day
No single test for family status discrimination has yet emerged in Canada, and the analytical approach to family status discrimination continues to vary from jurisdiction to jurisdiction.
