Canadian Employment Law Today

Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, a Thomson Reuters business 2019 Disability accommodation must be reasonable, not perfect Worker claimed employer discriminated against him when it didn't accommodate him in old job, but would have involved changing core duties BY JEFFREY R. SMITH A BRITISH COLUMBIA worker whose restrictions following an injury were ac- commodated in a new position has lost a human rights complaint he made because his employer didn't put him in his old job that wasn't suitable for his limitations. Brendan Boylan was hired in 2005 by the City of Burnaby, B.C. His position was on a casual basis with no guaranteed minimum number of hours or a particular role. In early 2014, Boylan was working as a program leader at a community centre and recreation complex — which was a popu- lar and noisy location — and occasionally served as a museum interpreter as well. e program leader position involved working in a gym with up to 200 people participat- ing in different activities, making it a fast- paced and physically demanding job. Un- fortunately, in January 2014 he suffered a head injury and developed post-concussion syndrome, which made him unable to work for some time. By October 2014, Boylan was still off work receiving occupational therapy. His occu- pational therapist contacted the city for job descriptions or physical demands analyses of the program leader and museum inter- preter positions. On Oct. 24, the therapist sent a doctor's note clearing Boylan to begin a return-to-work program for both posi- tions by Nov. 3. e return-to-work plan included limitations on balance, exposure to bright lights and noisy environments, and repetitive bending or crouching. e note also mentioned there was a need for special consideration of Boylan's photophobia and lapses in short-term memory. ree days after receiving the doctor's note, Burnaby informed Boylan it wouldn't be returning him to work the following week, as it needed to review the information and approve a return for him. e city also told his occupational therapist that Boylan's limitations didn't fit with the job demands and operational and safety requirements of the program leader position. On Nov. 19, WorkSafeBC — the prov- ince's workers' compensation and safety au- thority — contacted Burnaby saying Boylan's occupational therapist believed Boylan was suitable to return to the museum interpreter position. e therapist followed up with an updated list of Boylan's restrictions and asked if Boylan could be accommodated at the museum. Burnaby responded that there were shifts available that would meet Boylan's restrictions. Boylan later began taking program lead- er training and in January 2015 asked the city's human resources department if he would be able to start working in the pro- gram leader position in April, at which time he expected to be ready to also work as a museum interpreter. In April 2015, WorkSafeBC confirmed that Boylan was "permanently disabled with permanent functional impairment includ- ing headaches, mild cognitive impairment, light sensitivity, imbalance and noise sen- sitivity" that kept him from performing his full pre-injury job duties as a program leader. e city was informed of this development and Boylan remained off work until March 2016, when the city offered him three shifts in the museum interpreter position. Boylan accepted two of the shifts, but de- clined the third as he felt he wasn't yet able to work that much. Medical restrictions too much for old position: Employer In June 2016, Boylan's occupational thera- pist requested Burnaby accommodate a re- turn to the program leader position, as she felt his limitations and restrictions didn't interfere with the "essential job duties" of the job. e city conducted a review to de- termine if this was possible, but found it couldn't accommodate Boylan because of the following restrictions: • Wearing earplugs in noisy environments would impede the requirement to hear the activities being supervised and the personal radio. • Restricting multitasking and dividing his attention was realistic as the position re- quired multiple tasks at the same time. • Restrictions on lifting, carrying, pushing, and pulling was contrary to the need to move equipment in short periods of time • Restrictions on frequent customer contact — hard to avoid given the core requirement is to interact with the public in a noisy, crowded environment. Another request two months later had the same result. e city's co-ordinator of pro- grams felt that Boylan's limitations would impede his ability to interact with people and do core requirements of the job, thereby creating "significant safety concerns." Re- moving these requirements would change the nature of the position, said the city. Burnaby received updated information on Boylan's restrictions and limitations in February 2017 and again reviewed Boylan's ability to work as a program leader. Howev- er, it reached the same conclusion and told Boylan in July that it couldn't return him to his program leader position. Boylan filed a human rights complaint alleging discrimi- nation regarding employment on the basis of mental and physical disability, claiming he had been able to return to the museum interpreter position so he should have been able to return to he program leader posi- tion as well. e tribunal found that there was no doubt Boylan had a disability and the change in his job was an adverse impact. However, it was doubtful that adverse impact was spe- cifically because of his disability, as the evi- dence indicated he was no longer capable of doing the job, said the tribunal. e tribunal noted that WorkSafeBC in- dicated the program leader position was no longer suitable for Boylan in April 2015, and the job description — dealing with noise, bright lights, a fast-paced environ- ment, multitasking, and interacting with people — didn't fit with Boylan's limitations and restrictions. Based on this evidence, the tribunal agreed with Burnaby that Boylan's pre-injury position was no longer appropri- ate and accommodation of those restrictions would have significantly changed the nature of the position. e tribunal found that Burnaby ac- commodated Boylan since his injury by allowing him an extended leave of absence and returning him to work in the museum interpreter position, which fit with his re- strictions. It also found that while Boylan may have wanted to return to his program leader position and disagreed with the city's assessment that he couldn't be ac- commodated, the city wasn't required to accommodate him if it caused too much hardship in changing the nature of the job and restructuring other duties around it. Returning Boylan to work in his interpret- er position was sufficient accommodation of Boylan's functional limitations, said the tribunal, adding that the duty to accommo- date involves finding a reasonable accom- modation solution, not a perfect one. Boylan's complaint was dismissed. For more information see: • Boylan v. City of Burnaby, 2019 Car- swellBC 487 (B.C. Human Rights Trib.).

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