Canadian Employment Law Today

8 | March 28, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends security of patients, staff, and the public at the hospital, as well as patients when out in the community. FSOs were responsible for driving and escorting patients — a class 4 driver's licence was necessary for the job — performing hallway lockdowns when patients were being transported, responding to alarms, perform perimeter security checks, and monitor security systems. ey were usually required to work rotating shifts at the hospital. Adair rotated between day (7 a.m. to 3 p.m.) and evening (3 p.m. to 11 p.m.) shifts and occasionally worked night shifts (11 p.m. to 7 a.m.) on an overtime basis to fill in for FSOs on sick leave or vacation. Adair had epilepsy since he was a teenager but it had been mostly controlled with medication that prevented seizures. Adair informed the commission of his medical condition when he was hired because FSOs have to deal with potentially violent patients. In January 2013, Adair suffered an epileptic seizure. His family physician and neurologist put him off work until they could determine the reason for the seizure and that he was stabilized. Adair also lost his class 4 and class 5 driver's licences. In October 2013, Adair was medically cleared to regain his class 5 driver's licence, but he was informed he would have to be seizure-free for five years before he could get his class 4 licence back. He began discus- sions with the commission to return to work. Worker couldn't work alone and couldn't drive patients e commission didn't want Adair working alone on the night shift due to the risk of a seizure — Adair's doctor agreed and provided a note saying fatigue could trigger a seizure and night shifts were not recommended — and Adair couldn't escort patients to other locations during the day shift because he didn't have his class 4 driver's licence. Adair didn't want to return to working as a health care worker because it would mean a $4-per- hour pay cut. Adair suggested working day and evening shifts if the commission only required a class 5 driver's licence, but the commission objected. He also proposed working his previous day and evening shift rotation without night shifts with his supervisor transporting patients when necessary. e supervisor agreed that he would cover Adair for this task. However, they ultimately decided Adair would work 90 per cent evening shifts and 10 per cent night shifts as vacation relief. Adair reluctantly agreed as he thought it was the only way to retain his job and pay rate, though he told the commission the accommodation offered wasn't reasonable. He returned to work at Colony Farm hospital on Jan. 6, 2014. A few days later, after working two eve- ning shifts followed by two days off, Adair filed a human rights complaint saying the accommodation solution wasn't ideal and as a result the commission discriminated against him because of his disability. He also said he was restricted from working daytime hours and that placed undue hardship on him and his family — he was married with two young children. Adair said he was heavily involved in his children's activities and the change to working mostly evenings only gave him about 30 minutes per day during which he could interact with his kids, between when they woke up and when they went to school. He also said his wife was "burnt out" over child care and his younger son was particularly affected by his absence. e tribunal noted that the purpose of accommodating an employee with a disability is to "ensure that an employee can work if the employee is able, and to remove barriers to continued and productive employment where that can be done without undue hardship." e accommodation must be reasonable to both sides and balance both the employee's and employer's needs. e tribunal found that Adair's two other accommodation proposals weren't accept- able for the commission. Allowing him to transport patients during the day with a class 5 licence wasn't feasible as the commission couldn't change its licence requirement for many reasons — it was a requirement of the job. And as for having his supervisor drive patients on the day shift, it also wasn't reason- able for the commission to have to arrange that. ough the supervisor was willing, his job involved overseeing the department and performing administrative functions. Trans- porting patients for Adair would take the supervisor away from the control room and make him less likely to be available in emer- gencies — not an acceptable situation for the commission, said the tribunal. Employer took reasonable steps for accommodation ough some in the commission's manage- ment were reluctant to have Adair work as an FSO at all, given concerns over the seizure risk and his loss of his class 4 licence. Howev- er, it took steps in good faith to investigate the options, allowing Adair to work evening and night shifts or revert to a health care position. ese were reasonable measures that accom- modated Adair's disability and didn't inter- fere with the duties of his co-workers. Adair agreed to the evening and night shift rotation so he could keep his pay rate and position. As a result, there was no discrimination based on Adair's disability, said the tribunal. As for Adair's family status, the tribunal noted there was no medical evidence of "a significant negative effect" on Adair's wife or children because of the evening shifts. While he clearly was devoted to his family and the evening shifts took away some time to spend with them, the tribunal noted that he had full access to them on his days off — with a four days on, two days off schedule, that would give him at least three days per week with his kids. e tribunal also questioned the effect the shift schedule truly had, as Adair filed his complaint after only two evening shifts — too soon to know any lasting effects. e tribunal noted that while Adair's youngest was particularly affected, this was more likely because Adair had been home full- time during his recovery and the change brought on by his return to work was causing the issue — a normal response for a child in such circumstances, said the tribunal in finding no evidence indicating Adair's legal responsibilities to his children were not being met. e tribunal also noted that in late 2014, a hiring freeze was lifted and more FSOs were hired, which allowed Adair to work day shifts without having to drive patients. As a result, he was able to return to rotating between day and evening shifts as he did before his seizure, so even had there been discrimination from January until that time, the situation was resolved. Adair's complaint was dismissed. For more information see: • Adair v. Forensic Psychiatric Services Commission (No. 2), 2017 CarswellBC 2072 (B.C. Human Rights Trib.). Night shift schedule kept worker from seeing his children « from NEW SHIFT on page 1 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as navigating benefits during the notice period, discipline and dismissal for off-duty conduct, Ontario's employment standards changes, and diversity in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

• Cover