Canadian HR Reporter

CANADIAN HR REPORTER JULY 2019 NEWS 13 Safety Reporter Canadian www.safety-reporter.com Employer cleared for delaying employee's return to safety-sensitive work in B.C. Medical note recommended worker's return date to Delta lumberyard, but employer requested more information on his mental health, readiness BY JEFFREY SMITH A British Columbia em- ployer acted reason- ably when it delayed a worker's return from medical leave an additional three weeks while it ensured it had suffi- cient medical information to clear the employee for work in a safety-sensitive position, an arbitrator has ruled. Northgate/West Fraser Lo- gistics and TC, Local 31 (Ch- erak) involved Northgate/West Fraser Logistics, which operates a lumberyard and warehouse in Delta, B.C. e lumberyard has a railway siding running through it, allow- ing it to receive finished lumber by rail as well as trucks. e railway shipments involve a railway engine — or "track unit" — pushing up to seven railcars on the siding through a gate into the lumberyard. Once the railcars are parked, the track unit backs out and leaves. Once the shipment is in the yard, two forklift drivers unload the lumber, then move the rail- cars 60 metres through another gate and park them for the rail- way to take away. Moving the railcars is done by towing them with one forklift, while the second forklift driver stands on a railcar and operates the brake. Because of the presence of the railway siding and the railcars, Technical Safety BC consid- ers Northgate's lumberyard a rail-yard operation. As a result, the yard was subject to the Ca- nadian Rail Operating Rules (CROR) and the forklift drivers had to be certified as "car mov- ers" with appropriate training and a medical examination as they were considered safety- critical positions. In addition, the rail operat- ing rules considered all those positions "directly engaged in the operation of trains in main track or yard service" to be safety-critical. Oliver Cherak worked as a forklift driver in the lumberyard for Northgate and had been em- ployed with the company and a predecessor employer since 2013. He underwent the car mover training and medical examina- tion and received his CROR cer- tification card on Jan. 25, 2017, which was specific to the North- gate lumberyard. Worker off work due to mental health issues In early October 2017, Ch- erak sent a note to Northgate from his psychiatrist saying that he was "struggling with a serious illness" and needed to be off work for one month. e psychiatrist noted that he would be assessing Cherak on a weekly basis. In early November, Cher- ak emailed Northgate to say he was "still seriously struggling" and needed more time before returning to work. Subsequent communica- tions from Cherak request- ed he be excused from work until March 31 "due to serious medi- cal reasons." By this time, Northgate was concerned about the serious- ness of Cherak's illness and what it meant for his safety-sensitive role as a forklift driver. Under the rail-operating rules, an organization's chief medical officer may require a person returning to work in a safety-critical position after a leave due to illness or injury to undergo a medical fitness-for- duty assessment. Such assessments were also required prior to beginning em- ployment in a safety-critical po- sition as well as every five years until the age of 40 — and every three years thereafter. CROR medical assessments took into consideration medical conditions that could cause im- pairment that could "constitute a threat to safe railway opera- tions" including mental disor- ders such as anxiety and panic attacks. e chief medical officer was also entitled to restrict workers from occupying a safety-critical position. Forklift driver returns to work In late February 2018, North- gate informed Cherak that he would have to be cleared by the company before returning to work. Cherak's psychiatrist provided a note stating he could return to work on March 1, 2018, with no limitation. Cherak also shared with Northgate that he had expe- rienced an emotional break- down that had caused him to "lose my ability to concentrate effectively, manage stress and anxiety, and caused sleep dis- turbances which exacerbated my condition." He explained that he provid- ed this information in the spirit of "creating complete transpar- ency concerning my sick leave" and he was confident he and his psychiatrist had found the cor- rect combination of medica- tion that would get him ready for work. However, Northgate's chief medical officer was concerned that Cherak's psychiatrist gave no details on Cherak's condi- tion, didn't acknowledge that his job was designated as safety- critical — the CROR required individuals with acute stress disorder to be asymptomatic for one month and assessed by a physician before returning to a safety-critical position — and didn't have enough expertise in occupational health. The chief medical officer asked for more information from the psychiatrist, but the psychiatrist declined to of- fer an opinion on Cherak's fit- ness to occupy a safety-critical position. As a result, the chief medi- cal officer felt the best way to ensure Cherak was safe to work in his regular position was an independent medical exami- nation (IME) from an occupa- tional physician. An independent psychiatrist conducted an IME on March 21, finding Cherak's condition didn't make him a safety risk and he was "fit to work in a safety- sensitive position that does not require a railway medical." e examiner noted that Ch- erak could continue operating a forklift without car-moving du- ties to avoid the requirements of the CROR. Cherak returned to work as a forklift driver on March 26, 2018, without any car-moving duties. e union filed a grievance for compensation for Cherak for the 17-day delay from when his psychiatrist declared him fit for work and when Northgate cleared him for work. It argued the position of fork- lift driver wasn't a safety-critical position under the CROR and therefore wasn't subject to the extra requirements to determine fitness for work. e union also pointed to the collective agreement, which stated that employees absent from work because of illness or accident could not suffer a reduction of wages because Northgate required a medical examination before returning to work. Forklift drivers not in safety- critical positions: Arbitrator The arbitrator noted that the forklift driver position Cher- ak performed before he went off work involved car moving as a core function, though not much time was spent doing so. However, the CROR defini- tion of a safety-critical position was one that "directly engaged in the operation of trains in main track or yard service." e CROR stated that trains involved engines or track units for "on-track operation." Since the car moving involving the forklift drivers meant tow- ing the railcars from beside the track, and they didn't move very fast, forklifts could not be con- sidered track units. Therefore, forklift drivers weren't involved in the opera- tion of trains and weren't a safe- ty-critical condition subject to the rail-operating rules, said the arbitrator. However, while Cherak's job wasn't safety critical under the CROR, the arbitrator found it was a safety-sensitive position for which Northgate needed suf- ficient medical information that supported the claim Cher- ak could do the job safely. Though Northgate's chief medical officer was concerned with determining if Cher- ak could return to a safety-critical position, he still had discretion on whether to clear Cherak for safety-sensitive work, said the arbitrator. e psychiatrist's note stat- ing Cherak could return to work on March 1, 2018, didn't demon- strate any knowledge of the na- ture of Cherak's work and "was insufficient to give the employer reasonable confidence (Cherak) was fit to return as a forklift driv- er in its lumberyard, even if ex- empted from car-moving work," said the arbitrator. Cherak told Northgate he had found the right combina- tion of medication to allow him to work, but the psychiatrist didn't elaborate on his fitness for safety-sensitive work — it wasn't until the medical exami- nation that Northgate received such a medical opinion. As a result, the arbitrator found Northgate acted reason- ably by requiring additional medical information and then requiring an IME before return- ing Cherak to his safety-sensitive position. The arbitrator determined that Northgate didn't have suf- ficient medical information to return Cherak to his safety- sensitive position until the IME report after March 21, not the psychiatrist's suggestion of March 1. Cherak wasn't entitled to any compensation and the griev- ance was dismissed. A British Columbia lumberyard was concerned about the seriousness of an employee's illness and what it meant for his safety-sensitive role as a forklift driver. Credit:TFoxFoto (Shutterstock) e psychiatrist's note stating Oliver Cherak could return to work didn't demonstrate any knowledge of the nature of his work.

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