Canadian HR Reporter

30 www.hrreporter.com C O L U M N S E M P L O Y M E N T L AW FIREFIGHTER LOSES JOB OVER FIT-FOR-DUTY DISPUTE British Columbia firefighter who claimed that he didn't have any medical issues was not discriminated against when he was fired for failing to provide medical information showing he was fit for duty, the B.C. Human Rights Tribunal has ruled. Kevin O'Beirne was a paid-on-call firefighter for the District of Mission, B.C. The Mission Fire/Rescue Service has guidelines that require all firefighters to be "evaluated by a medical doctor for clearance" to perform firefighting duties. Firefighters are also required to undergo medical examinations when requested by the fire chief. On March 13, 2018, O'Beirne was participating in a search-and-rescue drill while wearing a breathing apparatus. At one point, he removed his mask and looked out of breath, sweaty and pale. O'Beirne said he had been sick with the flu and he took off his mask because he thought he might vomit. He denied being in medical distress and, after a short rest, he completed the drill. However, the district advised that it had a duty of care in case he had a health issue that could affect his job performance and the safety of its personnel. It gave O'Beirne a medical form for his physician to complete regarding his fitness for duty and said he would be re-evaluated in June. O'Beirne didn't think the form was necessary and thought that if he completed the next "BA Olympics" — exercises mimicking the conditions of a fire scene — with a better result than the previous one, any concerns would be resolved. The next BA Olympics were on June 12. O'Beirne's blood pressure was measured at 180/100 before the exercises and 200/110 afterwards — higher than the acceptable National Fire Protection Association standard for safely performing essential firefighter tasks, which is 160/100. As a result, he was told his physician must confirm that he was fit for duty. O'Beirne said he felt normal and his results were better than his last BA Olympics, so he had demonstrated his fitness for duty. And while his blood pressure was measured at 140/80 a few days later, the district said that it still needed the medical form. After additional reminders and more resistance from O'Beirne, the district suspended him from emergency calls on July 17 until he provided the necessary medical documentation. He was also warned that failure to provide the information would lead to the assumption that he had resigned from his position. O'Beirne was confused, as he had successfully completed the June exercises and his blood pressure had already been recorded at acceptable levels. He sent a letter demanding proof that the district had the right to make him provide medical information. The district responded by saying a refusal to comply would be considered insubordination that could lead to discipline, up to and including dismissal. In August, O'Beirne obtained a doctor's note certifying that he was fit to perform regular firefighting duties, but he refused to provide it until the district complied with his information request. The district terminated his employment due to insubordination, effective Aug. 21. O'Beirne provided the note the next day, but the district didn't reconsider. He filed a human rights complaint alleging that the district discriminated against him on the basis of a perceived physical disability. The tribunal found that the district perceived O'Beirne to have a physical disability as it was concerned with his fitness for duty. His suspension and dismissal constituted an adverse impact, but there was no nexus between those and his perceived disability because there was a reasonable, non-discriminatory reason, said the tribunal. The tribunal found that the district identified a potential health and safety risk based on its observations in March and June 2018 and it was reasonable to require medical documentation on O'Beirne's fitness for duty. Regardless of O'Beirne's belief that he had removed concerns about his health in June, the district instructed him to obtain medical documentation in March. He didn't comply until after his termination five months later, said the tribunal. "O'Beirne was warned many times about the consequences of his failure to provide medical information of his fitness for duty in circumstances where the evidence suggests the district had a reasonable basis for requesting the information based on the events," said the tribunal. The tribunal dismissed the complaint. See O'Beirne v. District of Mission, 2020 BCHRT 199 (B.C. Human Rights Trib.). CHRR A B.C. Human Rights Tribunal decision recently upheld a firefighter's termination for refusing to provide medical information showing fitness for duty and rejecting the firefighter's claim of disability discrimination, writes Jeffrey R. Smith CANADIAN FIREFIGHTER TIME-LOSS INJURY CLAIMS 2009-2018 Jeffrey Smith Editor of Canadian Employment Law Today Source: University of Fraser Valley Centre for Public Safety and Criminal Justice Research The district advised that it had a duty of care in case he had a health issue that could affect his job performance and the safety of its personnel. A 2.1% Musculoskeletal 2% Cancer 86.7% Trauma injury 3.7% Mental disorder

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