Canadian Employment Law Today

Canadian HR Reporter, 2021 4 Newfoundland and Labrador company didn't give worker on medical leave opportunity to change mind on modified duties Employer's assumption leads to discrimination against worker with disability A NEWFOUNDLAND and Labrador com- pany discriminated against a worker when it chose to keep a replacement employee it had hired while the work went on medi- cal leave, the Newfoundland and Labrador Board of Inquiry has ruled. Maurice Philpott worked as a driver for City Tire and Auto Limited, an automo - tive repair company in St. John's. He was hired in 2009 and his duties for much of his workday involved driving vehicles — which involved a lot of looking over his shoulder — and moving large and heavy tires. In late 2012, Philpott was experiencing pain in his neck to the point where he had trouble moving his head from side to side. As a result, driving was painful and he had to leave work several times because of the pain. A November 2012 X-ray of his spine showed that the injury was degenerative and aggravated by his work. He saw a neurosurgeon in early February 2013 and reported that his neck pain had been increasing to the point where it was fairly constant and aggravated by physical activity. The neurosurgeon diagnosed him as having a bulging and deteriorating disk along with arthritis in his neck, providing him with anti-inflammatory medication and a referral for physiotherapy. A few weeks later, Philpott's doctor rec - ommended he take time of work as of March 1. Philpott applied for disability benefits, with his doctor saying that his symptoms began in May 2012, his job like- ly contributed to and aggravated his con- dition and he was unsure about a return- to-work date. The doctor also suggested his previous job could be modified. Replacement hired City Tire initially modified some of the driver duties with an eye toward Philpott's return, but it eventually hired a replacement for the driver position in April. The replace - ment employee also took on part-time ser- vice advisor duties because the person in that position left — Philpott had been asked to take on some of these duties before he went on medical leave, but he had declined because he wished to stay in the driver posi - tion for which he had been hired. With the new hire, City Tire adopted a policy that a driver was expected to cover for a service ad- visor on weekends and holidays — a prac- tice intended to advance drivers through the company while adapting to new economic circumstances. After another medical examination in late March, Philpott's doctor determined that Philpott's symptoms would improve over time, but they would likely be ongo - ing because they were "mechanical and de- generative." The doctor expressed hope that Philpott's symptoms would settle and Phil- pott could reintegrate into the workforce after two or three months of physiotherapy. Over the next few months, Philpott con- tinued to provide medical information to City Tire, including a report in June saying that he was unable to return to his driver job based on his current symptoms and that an occupational assessment might determine if he could perform a different job at City Tire. The company decided not to have an occu - pational assessment performed. In July, City Tire made the replacement driver a permanent employee while per- forming driver duties and some extra ser- vice advisor duties. In September, Philpott told the branch manager and assistant manager that he expected to be medically cleared for a re - turn to work on Oct. 21. He visited City Tire on Oct. 1 to have his car serviced and confirmed with the branch manager that he would be able to return on Oct. 21. However, a few days later, the branch manager called Philpott and told him to "consider this a two-week notice that you're being laid off" and City Tire was keep - ing things the way they were — City Tire wanted to keep the replacement employee in the driver position on a permanent ba- sis and there was only one such position at that location. On Oct. 18, Philpott's doctor cleared him to return to work as a driver, as tolerated. Philpott filed a complaint alleging dis - crimination in his employment on the ground of disability. He said that City Tire discriminated against him by terminating his employment following his medically related absence from work and the termi - nation was related to that absence — and, therefore, his disability. He continued to have problems with his neck, but he had been medically cleared to return to work. City Tire argued that it had modified the duties of the driver position but that, during Philpott's medical leave, the duties changed so that they involved covering as service provider on weekends and holidays. There was less demand for a driver, so the position involved more service advisor re - sponsibilities — a decision stemming from the company's new business model that was implemented for economic reasons. The replacement employee was willing to do these additional duties while Philpott was not, the company said. The board noted that the Nova Scotia Human Rights Act, 2010 prohibited an em - ployer from refusing to employ or continu- ing to employ or otherwise discriminate against a person in regard to employment on the basis of a prohibited ground of dis- crimination, including disability. Based on the medical evidence that Philpott had a degenerative disease in his neck that would worsen over time, the board agreed that he had a disability. Disability a factor in dismissal The board found that Philpott's job of driv - CASE IN POINT: ACCOMMODATION Accommodation can be a tricky matter when an employee goes on a lengthy medical leave and things change at work during the employee's absence. However, the duty to accommodate involves investigating all possible avenues to bring the employee back to work, including bringing the employee up to speed on those changes and what is needed from the employee for them to return to work. BACKGROUND BY JEFFREY R. SMITH The employer adopted a policy that a driver was expected to cover for a service advisor on weekends and holidays — intended to advance drivers through the company while adapting to new economic circumstances. CELT_Issue_30 MAY 5 FINAL.indd 4 CELT_Issue_30 MAY 5 FINAL.indd 4 4/21/2021 4:04:04 AM 4/21/2021 4:04:04 AM

• Cover