Canadian Labour Reporter - sample

The worker's medical restric- tions prevented her from per- forming her normal duties as a personal support worker, so St. Jo- seph's accommodated her by pro- viding a position with modified duties supporting other personal support workers. She was able to work regular hours but only had to perform about five per cent of the duties normally performed by support workers. The worker filed a claim for workers' compensation benefits, but the Ontario Workplace Safety and Insurance Board (WSIB) re- jected the claim, finding the work- er's injury wasn't work-related. Soon after, St. Joseph's learned of the rejected claim and, on Oct. 14, the worker's unit manager in- formed her the home no longer had modified work for her and she should get in touch with St. Jo- seph's third-party provider of dis- ability benefits. A few months later, on Feb. 10, 2015, the worker left a voicemail for her manager saying her doc- tor had cleared her for a return to work but she would need modi- fied duties for two weeks. The manager responded that St. Jo- seph's still had no modified work available. Benefits provider didn't provide doctor's return-to-work date The third-party benefits provider was in contact with the worker's doctor and informed the man- ager that the worker's progress was slow and her return to work couldn't be determined. The ben- efits provider indicated that it supported the worker's absence through March 31 based on the medical documentation it had. However, the worker's doctor provided a report to the benefits provider saying basically the same thing the worker had — she was able to return to work with two weeks of modified duties to start, then full duties after that. The worker saw her doctor on March 9, and he advised her she could return to work with regu- lar duties one week after that. He contacted the benefits pro- vider with that information and the worker returned to work on March 18. The worker also appealed the rejection of her workers' compen- sation claim and the WSIB sub- sequently found her injury was work-related. The worker filed a grievance claiming St. Joseph's violated both the collective agreement and the Ontario Human Rights Code by failing to accommodate her dis- ability with respect to her desired return to work in February 2015. The collective agreement had a provision on modified work that said, "Where an employee requires modified work or accom- modation for a reason mandated by the Human Rights Act, the em- ployer may modify the hours or duties of the employee's current job or otherwise. The parties shall meet to decide an appropriate course of action." The Canadian Union of Public Employees (CUPE) argued that St. Joseph's had relevant infor- mation that indicated the worker could return to work and the third-party benefits provider's opinion that her progress was slow and her return couldn't be determined was in error. It also argued that St. Joseph's should have provided the worker with the same modified duties it did in the fall of 2014 for two weeks rather than delaying her return to work. By not doing so, it discriminated against the worker, said CUPE. CUPE also said St. Joseph's vio- lated the collective agreement by not involving it in the accommo- dation process, as required by the modified work provision. Arbitrator Jasbir Parmar found the benefits provider's conclusion in February 2015 that the worker's return to work couldn't be de- termined was incorrect, since it had a medical report indicating the worker could return with two weeks of modified duties, then move to full duties. Even though the mistake was on the part of the benefits provid- er, the employer was still respon- sible for accommodation. Though it was understandable and reason- able St. Joseph's relied on the ben- efits provider's advice, it was re- sponsible for the provider's error "in the same manner it would be if it had made the error itself." Parmar found there was an as- sessment of the worker's situation, but it was just wrong. As a result, there was a failure to accommo- date the worker. Parmar ruled that St. Joseph's legitimately couldn't have accom- modated the worker with modi- fied duties without essentially creating a new position for her, which would constitute undue hardship. Though the worker per- formed modified duties in the fall of 2014, this was for a limited time and St. Joseph's eventually ran out of work for her. Things hadn't changed a few months later. However, the benefits provider had a medical report indicating the worker would be able to return to full duties two weeks after mod- ified duties. So even though St. Jo- seph's couldn't return the worker under modified duties, it could have returned her to full duties after that two-week period, which was March 1 — two weeks before when she actually returned. As for the collective agreement, Parmar found that while the term "parties" wasn't defined, in such agreements it generally refers to the union and the employer. Since St. Joseph's only communicated with the worker and didn't meet with CUPE to discuss the worker's accommodation, it violated the collective agreement provision. Parbar ordered St. Joseph's to compensate the worker for lost wages and benefits between March 1, 2015, and her actual re- turn to work on March 18, and declared St. Joseph's breached the collective agreement. For more information see: • St. Joseph's at Fleming and CUPE, Local 2280 (Brindle- Smith), Re, 2016 CarswellOnt 16375 (Ont. Arb.). 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Company pg. 1 Employer responsible for actions of benefits provider Photo: ariadna de raadt (Shutterstock)

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