Even though the legal principles governing the duty to accommodate disability are well established, applying them in practice continues to be a challenge for employers. It often seems that despite employers’ best efforts in the accommodation process employees and their unions can always find something to complain about, something they are willing to take all the way through an expensive litigation process.
The recent case of North York General Hospital v Ontario Nurses’ Association, 2012 CanLII 50008 stands as an example. It also shows how employers can meet their procedural duty to accommodate so as to be able to pass arbitral muster.
The grievor was a registered nurse who had been employed by the Hospital since 1985. Following surgery in 2008, and an unsuccessful attempt to return to work in a modified capacity, she went off work and received LTD benefits for two years. When the benefits ran out, the grievor sought to return to work and the Hospital started looking for a position to accommodate her in early 2011. However, for a variety of reasons that are documented in the arbitrator’s decision (including an intervening snowmobile accident suffered by the grievor), a suitable position was only identified for the grievor in late 2011. So a grievance was filed alleging that the employer had taken too long to find a suitable position.
The arbitrator ultimately rejected the grievance. As he wrote:
There can be no question that it would have been better, far better, for the grievor and her family if she had been able to return to work much sooner, and that she and they suffered economic and emotional hardship as a result. This is an interest that cannot be underappreciated and that underscores all of the parties’ efforts in this area. But it is not the only interest. The Hospital, too, has an interest– in ensuring that the work provided to the grievor does not put the health and safety of either her – its employee – or the Hospital’s patients, at risk. Both are interests in which the Association must, and does, share. The fulfillment of these interests takes time, effort, human and monetary resources – all in an environment in which such resources are increasingly scarce.
The arbitrator refused to fault the Hospital for the time taken to find accommodated duties for the grievor, noting that the Hospital had proceeded in a “dedicated and deliberate fashion, attempting to find the best possible fit for the grievor’s serious physical limitations in as timely a manner as possible”. The arbitrator showed sensitivity to the reality that the grievor was one among several nurses needing accommodation and at all times the Hospital was actively seeking to accommodate both her and them.
The arbitrator specifically rejected ONA’s accusing the Hospital of “tunnel vision” – of focusing on only one possible job at a time. The arbitrator accepted that it was not possible for the Hospital to properly examine multiple jobs for multiple employees at the same time, noting:
…pursuing all of the steps necessary to place a specific disabled employee in a specific position successfully, without occasioning risk to the disabled employee, to other employees, and to patients, especially in a Hospital environment in which the goal is to alleviate, rather than occasion, illness or injury, takes substantial time and resources. The Hospital’s staff (Human Resources, Occupational Health, and managerial), and its ability to undertake PDAs and FAEs, to conduct the resulting evaluative reviews, follow-ups with physicians, suitability and return to work meetings, together with the development of graduated return to work programs, is not unlimited, especially insofar as it involves staff members whose principal task is delivering patient care.
Each accommodation case turns on its facts, of course. However the arbitrator’s decision in this case provides a good example for employers to keep in mind when approaching the accommodation issues in their own workplaces. A respectful, methodical, balanced and safety-minded approach to the accommodation always increases the chances of passing arbitral scrutiny.