llness and Absenteeism.com - October 2013 Newsletter

In this edition you will find...


Feature Case: Employer Found to Have Acted Properly When It Refused to Accommodate a Disabled Nurse in a Team Leader Position

In Hamilton Health Sciences, 2013 CanLII 36061 (ON LA) (McNamee), the employee, who was disabled and unable to perform bedside nursing, was discharged from the LTD program with permanent restrictions. It took approximately eight months before the employee could be placed in a suitable position. The union contended that during the intervening eight months, the employee should have been accommodated in a Team Leader (or Charge Nurse) position.

The employer did not dispute the employee’s ability to perform the Team Leader function on the unit except that the function included a requirement that the Team Leader “be capable and willing to perform bedside nursing duties as the occasion demanded.”

The employer called extensive evidence to establish the acute nature of this particular unit. It relied on a Physical Demands Analysis setting forth the demands on bedside nurses working on that unit. It was agreed that the employee’s restrictions would not permit her to act in that capacity. The arbitrator framed the questions in the following terms:

Did the bedside nursing components of this Team Leader job, and the requirement to assist in emergencies or unpredictable events, constitute an essential duty or duties of the job? If so, was there an accommodation available which would have assisted the employee in performing these essential duties and which would not have caused undue hardship to the employer?  If such was the case, did the employer fail to act with reasonable dispatch in offering the work to the employee?

The Team Leader functions were assigned by the employer. The employer contended that apart from the issue of her ability to perform the essential functions, it would be “inappropriate to accommodate the grievor with a Team Leader position because the position, although appointed, carried with it a monetary premium, and would therefore be akin to providing her with a promotion. It also submitted that an accommodation which permitted the grievor to work only on the day shift … would not be suitable because it would impact other employees and constitute the creation of a new job.”

Neither assertion was accepted:

I am not completely comfortable with either assertion in the context of these facts. There is no question that the impact of a potential accommodation upon other employees should be considered, but the process of accommodation is more complex and demanding than a mere comparison between the grievor’s qualifications and the physical demands analysis of vacant jobs. Many potential jobs considered in the accommodation process require some degree of alteration and the search for accommodation, in my mind, does not simply stop with respect to a job merely because some interchange in duties with other employees is required or because there is an impact upon others. Rather the nature, extent and duration of the alteration or impact must be considered and, at least in some cases, it might be appropriate to canvass for volunteers who are prepared to change shifts or otherwise work around the grievor’s limitations. Similarly, with respect to the submission that the Team Leader position should be ruled out because it entails more money, I can see no reason why a disabled employee should not be able to volunteer for the position in the same way that a healthy employee can. The grievor, in this case, is no less entitled than any other employee if she can do the essential duties of the job.

The grievance was however dismissed on the basis that the essential duties of the position required a degree of bedside nursing. The only realistic way to avoid having the Team Leader perform some of these functions would have been to schedule an extra employee to the unit. The arbitrator stated:

The authorities are unanimous, and I agree with them, that an employer is not required to accommodate to the extent that it provides another employee specifically for the purpose of assisting a disabled employee to perform the essential duties of her job.

A disabled employee’s ability to perform the essential duties of a position for which accommodation is sought is considered in section 14:607 of the Illness and Absenteeism manual, beginning at page 653 of the manual.


Recent Decisions of General Interest

1. In Agropur Division Natrel, 2012 CanLII 69477 (ON LA) (Kaplan), the employee had been terminated after an absence of upwards of one year. The arbitrator upheld the termination on the basis that the employee suffered from a number of non-curable mental health conditions that led to violent behaviour. Reinstatement would constitute an undue hardship.

Prior to his termination, the employee was diagnosed with a number of severe mental health conditions, including post-traumatic stress disorder, impulse control disorder, explosive type and attention deficit hyperactivity disorder. He also met the criteria for cluster B personality disorders. A physician opined that the employee suffered from “impulsive behaviour,” that he may become unpredictable and that he may become violent, particularly if under the influence of substances.

The arbitrator commented that it was common ground “that there is no cure for many of these afflictions, just the possibility of control provided, among other things, the grievor continues with treatment and does not abuse drugs or alcohol.” A physician testified that if he abused either, he may become violent.

The arbitrator stated the fact that the grievor had a documented propensity toward violent and threatening behaviour, and that he continued to suffer from brief psychotic outbreaks, were sufficient to make reinstatement impossible.

The arbitrator concluded that the risk to the work place and employees far outweighed the benefit to an individual. Undue hardship had more than been established in this case. He stated:

[An employer cannot] avoid its obligations to accommodate employees suffering from a disability such as mental illness by simply asserting that the employee in question constitutes a threat. There must be objective evidence. In this case, there is such evidence in the form of the medical reports from the grievor’s treating physicians, not to mention the grievor’s own observed conduct. In the face of these reports, and observed conduct, it would indeed constitute undue hardship to impose reinstatement on the employer, not to mention the other employees in this workplace. The employer is not entitled to certitude; but it is entitled to consistent and persuasive medical evidence that an employee with serious, troubling and incurable psychiatric disorders possesses little if no cause for concern in the case of reinstatement. That evidence is absent. Indeed, on balance, the evidence is to the exact opposite effect. There is still no medical evidence that the grievor does not pose a high risk of danger to himself and/or to others. The employer has an obligation to ensure that the workplace is safe for everyone, and that means … taking all reasonable steps to protect its employees from violence and from the threats of violence.

The arbitrator ordered that the employee be reinstated for the sole purpose of enabling him to apply for long term disability benefits. Undue hardship considerations as they relate to a risk of injury to others are addressed in section 14:5036 of the Illness and Absenteeism manual, beginning at page 617.

2. In Behlen Industries LP, unreported May 8, 2013 (Peltz), the employee was terminated for innocent absenteeism after having progressed rapidly through all stages of the employer’s Attendance Management Program. The termination was upheld, despite the fact that the employer had failed to comply strictly with the terms of its Attendance Management Program.

Arbitrator Peltz found that the employee’s absenteeism was excessive. He also concluded that the employer’s attendance management program met the arbitral requirement to provide a clear standard of minimum acceptable attendance. None of the divergences from the program were prejudicial to the employee. In his view, attendance management programs necessarily involve some flexibility:

… it is inherent in any attendance management process that some measure of flexibility must be retained to avoid treating employees unfairly. No set of rules can definitely cover all possibilities. The reasonable exercise of discretion is desirable in pursuit of restoring reliable attendance, surely the goal of all parties. Everyone wins when a problem employee overcomes his or her difficulties. The employer gets better productivity. The employee gets the full benefit of wages negotiated under the agreement … Training and promotion opportunities are enhanced. The burden of filling in for a missing co-worker is lifted from those who do attend every day. Managers get relief from the stress of responding to last minute sick calls.

… Arbitrary treatment should not be countenanced. But undue rigidity can itself cause arbitrariness. There should be a balance between structure and flexibility in the workplace. As Arbitrator Newman stated in Canadian Fabricated Products [[1998] O.L.A.A. No. 763 (E. Newman)], “…the assessment of absenteeism problems and management reaction to those problems must be tempered with a reasonable degree of attention to individual needs and circumstances.” The inconsistency complained of by the Union was in fact Employer responsiveness to the grievor’s situation.  

A similar approach was adopted in York University, 2012 CanLII 41233 (ON LA) (Surdykowski). There, the union grieved the introduction of a unilaterally imposed Attendance Management Program (AMP) on the basis that it constituted an unreasonable and discriminatory rule. It contended that the program offended the sixth principle set forth in the classic case of KVP Co. (1965), 16 L.A.C. 73 (Robinson), (i.e. that a rule unilaterally implemented by the employer, and not subsequently agreed to by the union, “should have been consistently enforced by the company from the time it was introduced.”

Arbitrator Surdykowski commented that the KVP analysis has been applied in many attendance management cases, and where its language is paraphrased to address that type of case, it can provide a suitable basis for review of an attendance management program. Having said that, he commented upon the sixth criterion in the KVP case (consistent enforcement):

Although the 6th criterion (consistent enforcement) may appear problematic  because of the flexibility and discretion that are inherent in a properly structured and administered attendance management program, it also applies in the sense that an attendance management program should include sufficient flexibility and discretion to permit it to be administered with consistent fairness and due regard for individual circumstances.

No evidence was presented to satisfy the arbitrator that what was a prima facie reasonable program was not reasonable or that it had been applied in a manner that was contrary to the collective agreement or legislation or that its terms were otherwise unreasonable. The grievance was denied.

Termination of employment for non-culpable absenteeism is considered in section 17:300 of the Illness and Absenteeism manual, commencing at page 840 of the manual.

3. In Bluewater Health, 2013 HRTO 902 (CanLII) (Pickel), the adjudicator found that it was reasonable for the employer to insist upon receipt of detailed medical information prior to considering a partially disabled employee for placement in a particular vacancy.

The employee had suffered a work-related disability while performing the duties of an Ultra Sound Technologist. The Workplace Safety and Insurance Board (the “WSIB”) ultimately awarded her a non-economic loss award of 26 % because of her permanent impairment. She was accommodated in a clerical position.

The employee later completed an MRI Technologist’s certification, and subsequently applied for such a position with the employer. The employer, being concerned about the employee’s permanent restrictions, advised the employee that if she wished to be considered for the position, she would have to establish that her permanent restrictions had been removed or modified. This was to be done by applying to the WSIB for a re-assessment of her non-economic loss award.

Rather than doing so, the employee provided the employer with a “script note stating that she had made further improvements relating to [her earlier injury]. In the note, [the doctor] recommended that all physical restrictions be removed. He also stated his opinion that the applicant was fully capable of performing all duties of an MRI Technologist.”

The employer refused to accept the doctor’s note as sufficient to establish that the existing restrictions were no longer applicable. The employee then resigned to accept an MRI Technologist position in another health care facility.

The adjudicator concluded that while the employer was entitled to seek further medical information, it was not entitled to demand that she request a reassessment of her loss of earnings award:

I accept that there was a reasonable basis for the respondent to be concerned about whether the applicant’s physical restrictions really had improved to the extent that they could be removed completely, as claimed by her family doctor. I do not agree with the applicant that the fact that she has safely performed MRI Technologist duties at another hospital after her resignation demonstrates that the respondent’s demand for more information was unreasonable. The assessment of whether or not the respondent’s demand was reasonable must be made based on the information available at the time it made the demand.

In my view, given the significant restrictions that had been identified by specialists through the WSIB, it was reasonable for the respondent to require more detailed information from the applicant before it considered her for the MRI Technologist position. Specifically, it was reasonable for the respondent to require more than a short script note from the applicant’s family doctor to remove these restrictions completely. This is particularly the case as, unlike the applicant’s position as an MRI clerk, the MRI Technologist position involved a greater need for movement and carried risks in terms of patient safety.

However, I find that it was unreasonable for the respondents to insist that the applicant seek a reassessment of her NEL [loss of earnings] award before it would consider her for the position … [T]here is no provision in the WSIA that contemplates such a reassessment in cases where a worker’s condition improves. The only provision dealing with NEL reassessments (S. 47(9)) provides that workers may request a reassessment to increase their NEL award if their physical condition deteriorates.

Given that the employer’s demand for more medical information was upheld as being reasonable, and that the employee had voluntarily resigned to take employment elsewhere, damages to compensate for breach of the Code were limited to $2,000.

An employer’s entitlement to demand that an employee provide medical information is considered throughout Chapter 7 (Medical Certificates) and Chapter 8 (Employer-Directed Medical Examinations) of the Illness and Absenteeism manual. The reasonableness of an employer’s demand, in the context of being able to perform enhanced job functions, is specifically considered in section 8:203 of the manual, commencing at page 175.