Accommodation: The Employer Cannot Dance Alone

Written by Daniel Standing LL.B., Editor, First Reference Inc.

The process of accommodating an employee with a disability can be a long one that is fraught with possible hurdles along the way. While the employer makes the ultimate decision about what a reasonable accommodation consists of, the union and employee have roles to play, as well. Primary among the employee’s responsibilities is the sharing of relevant medical information with the employer. When communication breaks down and the employer is left without the information it needs to explore possible solutions, arbitrators will take a hard look at the employee’s contribution. If, as in Wearmouth v West Fraser LVL, 2021 AHRC 203 (CanLII), he or she caused the accommodation process to falter, the employer stands a better chance of defending a discrimination claim brought against it.

Background

Rhianna Wearmouth worked for West Fraser at its laminated veneer lumber site. In constant operation, the plant was a safety-sensitive worksite that required its employees to work in different departments with different shift structures. At the relevant time, Wearmouth worked 11-hour daytime shifts from Monday to Friday in the beam and header department.

In 2014, West Fraser reassigned Wearmouth to its dryer department which required 12-hour shifts on a rotating schedule, including afternoon and night shifts. Around this time, Wearmouth experienced mental health problems and consulted her physician. That meeting led her to present a medical note to the employer stating that “it would be beneficial for her to work fixed day-time hours.” West Fraser accepted the note and agreed to temporarily accommodate her in another department. It told her, however, that it needed further medical information.

A month later, Wearmouth presented the employer a completed physician’s form. The form stated, “Because of medications (can cause drowsiness if the shift is irregular) should work only day shift or only night but limited crossover.” The way the note was worded left it open to interpretation. The manager felt that the doctor’s notes pointed solely to Wearmouth’s preferred accommodation, but offered no clues as to what, in the doctor’s view, “irregular” shifts were, or what was meant by “limited crossover.” Because of the potential for injury at the workplace, the manager escorted Wearmouth off-site and gave her forms for short-term disability. He explained to Wearmouth the vague aspects of the doctor’s form and asked her to provide more information.

A week later, the employee provided a further medical note that said simply that Wearmouth was “medically fit to work and is not disabled. The medications that she is taking will not affect her work as long as she is able to take them on a routine basis and avoid the difficulties of frequent shift changes.”

Again, the employer was left to guess at what the doctor meant by “frequent shift changes.” It also had lingering concerns about the effects of Wearmouth’s medications on her ability to work safely, so it kept her off work, advising her that it required clarification.

Even after Wearmouth filed her human rights complaint in July 2014, the employer persisted in its attempts to get the lacking information, mailing Wearmouth three letters to that effect. In November 2014, West Fraser was no further ahead in getting the required information, so it terminated Wearmouth’s employment.

The law

The decision focused on the question of whether the employer had accommodated the complainant to the point of undue hardship when it held Wearmouth off work while it awaited further medical information.

As in many cases of this nature, the result depended on an assessment of whether the employer accommodated the employee to the point of “undue hardship.” On this point, the Alberta Human Rights Commission began by citing Supreme Court jurisprudence that decided that the search for accommodation is “a multi-party inquiry” that requires the employee to be reasonable and co-operate with the process. While the employee can make suggestions, as she did here preferring to work in the beam and header department, it is the employer who makes the final decision about reasonable accommodation.

The Commission agreed with West Fraser that the medical information provided was insufficient to allow it to properly assess whether a safe return to work is possible. The Commission noted the similarity between this case and an Ontario labour adjudication where the arbitrator dismissed the grievance, noting that “[…] a doctor’s note is not sacrosanct. Doctors, for a variety of reasons, often act as advocates for their patients (which is normally a good thing), and may even approve of a patient’s return to work preferences without regard to how those might play out in the workplace… An employer has the right to raise reasonable questions about doctor’s notes and seek clarification…”

Finally, the Commission rejected the employee’s argument that the employer had to explain why her preference of working in the beam and header department would have amounted to undue hardship. It ruled that West Fraser did not have to provide this explanation “until it had the reasonably necessary medical information to explore alternatives.”

Takeaways

The accommodation process is a fact-driven exercise that has to be tailored to the individual worker’s situation. Without the facts, the employer simply cannot discharge its obligations. Oftentimes, the employee and his or her physician are the sole sources of the information the employer needs, so when they run dry, the employer is left without many viable options.

This case and the principles found in it are of great help to employers in those difficult situations. Employees and their care providers who do not fully co-operate and provide useful information that the employer can use to evaluate accommodation options place their prospects for continued employment on precarious ground. Employers would do well to remind such employees of their obligations and perhaps give more than one opportunity to supply the required medical facts before deciding to cut ties with an uncooperative employee.

When it comes to accommodation, it takes two (or, in unionized workplaces, three) to tango.

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