Canadian Employment Law Today

No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John Hobel (on leave) Acting Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2016 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 Careless handling of caretaker's return to work? THIS INSTALMENT of You Make the Call involves an injured employee who felt her employer took too long in returning him to modifi ed work. Valerie Wilton was a caretaker with the Toronto District School Board since 2008, reporting to the caretaking team leader. On Feb. 26, 2014, Wilton had to take off work due to osteoarthritis in both of her hands. Her job duties aggravated the condition to the point where it was too painful to work. She was unable to work for fi ve months. Wilton had her doctor complete a func- tional abilities form (FAF) that indicated she could return to work with certain limi- tations on Aug. 25, 2014, and forwarded it to the school board on July 31. e following week, she submitted a caretaker's modifi ed work assessment related to her workplace, also completed by her doctor that stated she could return to work three days a week on Aug. 25 and should be able to work regular hours as of Sept. 8. e school board reviewed the FAF and the assessment forms, but had concerns over whether Wilton could work safely without reinjuring herself. e employee health and welfare department requested additional in- formation regarding Wilton's restrictions on lifting and weights, sending her another FAF to be completed by Aug. 20. Wilton returned the new FAF to the school board on Aug. 19, but it was still con- cerned over a perceived vagueness of her limitations, with the FAF stating she could do "light cleaning" and "light mopping." e employer contacted Wilton's doctor to seek clarifi cation of these terms and the frequen- cy with which she could perform certain tasks. It cancelled a return-to-work meeting scheduled for Aug. 29 with Wilton until it re- ceived further information. Wilton's doctor felt the school board's questions would be better evaluation two to four weeks after Wilton returned to modi- fi ed duties. At a return-to-work meeting on Sept. 3, the school board proposed that Wilton temporarily transfer to a large high school where more light duties were available to fi ll an eight-hour shift. Wilton agreed and be- gan working at the high school the following week. e union fi led a grievance on Wilton's behalf, claiming the school board unnec- essarily delayed Wilton's return to work as it had enough information from the ini- tial FAF and caretaker assessment form to plan her return to work. e grievance also pointed out Wilton responded promptly to the school board's requests for additional information – it had all the information it re- quested by Aug. 20 -- and the deadlines it set didn't allow her to return in a timely manner. Wilton's short-term disability benefi ts were exhausted on Sept. 2, the day before her return-to-work meeting, so she had to use sick days and lieu days for a week until she returned to work. YOU MAKE THE CALL Did the school board unreasonably delay Wilton's return to work? OR Did the school board proceed appropriately in ensuring it had enough information? IF YOU SAID the school board proceeded appropriately and there was no unreason- able delay, you're right. e arbitrator noted that Wilton had been absent from work for a few months, which was a "considerable pe- riod of time." e school board was obligated to ensure Wilton could return to work safely and it needed clear medical information to properly assess what modifi ed duties it could assign her. Since the school board wasn't sure about some of the restrictions indicated on the FAF, it was reasonable to request ad- ditional information to clarify things, said the arbitrator. e addition information the doctor pro- vided consisted of the recommendation Wil- ton should be assessed a few weeks after she returned to work, which was suffi cient clari- fi cation regarding the approach to Wilton's return, said the arbitrator. e arbitrator also found that the school board was carefully as- sessing the situation – and it was also a busy time with preparation for the new school year – so the two-week deadline for more informa- tion and the two-week period from Aug. 29 to Sept. 11 "fell comfortably within the realm of reasonableness," said the arbitrator. However, since Wilton's short-term dis- ability expired on Sept. 2 and she had to use sick days and lieu days to get to her return-to- work date, the arbitrator found she suff ered "adverse economic consequences of not be- ing allowed to return to work." e school board set a deadline for additional informa- tion for Aug. 20, which seemed to take into consideration the FAF had indicated Wilton could return on Aug. 25. However, once it received the additional information from Wilton, a return-to-work meeting wasn't scheduled until Sept. 3 and she returned a week after that. e arbitrator found there was no reason the school board couldn't have reviewed the medical information more quickly upon receiving it on Aug. 19, and the delay to the originally scheduled meeting on Aug. 29 was unnecessary. e arbitrator ordered the school board to compensate Wilton for the lieu and vacation days she had to use between the expiry of her short-term disability benefi ts and her return to work. For more information see: • Toronto District School Board and CUPE, Local 4400 (Wilton), Re, 2015 arswellOnt 19823 (Ont. Arb.).

• Cover