Accommodation ‘not a standard of perfection, it's a standard of reasonableness’
“It's important to remember that, while accommodation can be daunting because it's an ongoing obligation, it doesn't have to be — it's not a standard of perfection, it's a standard of reasonableness.”
So says Sharaf Sultan, principal of Sultan Lawyers in Toronto, after an Ontario arbitrator upheld the termination of a worker who resisted her employer’s accommodation efforts.
The worker, 51, was hired by the City of Toronto in 2012 on a fixed-term contract. The contract elapsed in 2013, but she returned a year later as a solid waste collections operator.
In 2015, the worker was injured in a car accident and the city accommodated her with modified duties. Under the terms of an October 2018 settlement, the city agreed to place the worker in a position as a light equipment operator (LEO).
The LEO position involved operating equipment such as a litter vacuum machine, pick-up trucks, and light machinery, along with labourer duties such as picking up litter and cleaning. The city eliminated any tasks that the worker was unable to do based on a functional abilities evaluation (FAE), such as curbside garbage pickup.
Bag-and-broom pickup
The worker was assigned “bag and broom” duties removing litter along the street in November 2018. She wasn’t assigned litter vacuum work because she didn’t have the proper training, which was scheduled at certain times of the year. In addition, the machines available weren’t suitable for her physical restrictions.
However, as the worker performed the bag-and-broom duties, she felt pain in her legs. Her family doctor diagnosed a back sprain and provided a note saying she could resume regular duties with restrictions. The city offered the worker modified duties repairing litter bags and rolling garbage bags, but the worker didn’t think this fit with her doctor’s report.
On Dec. 10, the city assigned the worker to litter pickup duties with a cart and a grabber. However, the cart caught on a metal grate and caused further injury. The city offered other modified duties, which were reviewed regularly over the next few months.
In May 2019, the city put the worker back on bag-and-broom litter pickup. However, the worker expected to be operating the litter vacuum in the LEO position as per the 2018 settlement. She was allowed to take micro breaks as needed, but on her first day back she had pain that prevented her from continuing.
An employer didn’t have to accommodate a worker who requested specific accommodation but didn’t provide information on restrictions, the Alberta Human Rights Tribunal ruled.
Worker resisted night shift
The worker completed a second FAE and returned to work driving a pickup truck to inspect and report on the condition of litter bins. The worker resisted this assignment because it was in the evenings. She felt a night shift would negatively impact her mental health and obtained a doctor’s excusing her from night work.
The worker’s had filed a worker’s compensation claim, but it was denied on Sept. 24.
The city advised the worker that, since her claim was denied, she was on unauthorized leave. It offered her bag-and-broom pickup duties at her own pace with micro breaks.
The worker provided a doctor’s note indicating concern with aggravating her injuries, so the city hired an ergonomics consultant who determined that the modified duties were suitable.
The worker again provided a doctor’s note stating that she was unable to resume prior work activities. The city’s third-party insurance provider told the city that the worker’s “subjective symptoms were disproportionate to the objective findings” and her prognosis for returning to work was not good.
City offered graduated return
The worker’s application for long-term disability benefits was declined and the city offered her the same modified duties with a graduated return on May 26, 2020, as there was no indication that she still needed to be off work.
The worker was unhappy with the offer and requested more assessments. On June 2, the city informed her that her continued absence was “insubordinate and unapproved,” and if she didn’t return to work or provide “new, objective medical information” by June 19, she would be disciplined up to and including dismissal.
The worker provided a letter from her chiropractor stating that the labourer duties were not suitable and mentioned tasks that were not part of the modified duties.
After a couple of more warnings, the city informed the worker that if she didn’t report to work by July 29, she would be fired. The worker said that she had an appointment with her chiropractor to assess the offer of modified duties, but the city replied that information from a chiropractor was not sufficient.
The worker didn’t return and the city terminated her employment on Aug. 10.
It’s critical for employers to have a procedure in place to respond to accommodation requests, says an employment lawyer.
Worker wanted litter vaccuum
The union grieved the dismissal as a breach of the Ontario Human Rights Code. The worker believed that the 2018 settlement required the city to give her litter vacuum duties rather than labourer work and she said the duties offered could cause reinjury.
The arbitrator found that the modified duties offered by the city were within the worker’s restrictions as indicated in the FAE. In addition, the city said that she could work at her own pace and take micro breaks as needed to ensure that she didn’t exceed her restrictions.
The arbitrator also found that the information from the worker’s doctor and chiropractor didn’t address the modified duties that had been offered. They also did not indicate any change in the worker’s restrictions, so there was no new medical information indicating that the worker couldn’t perform the modified duties, said the arbitrator.
The arbitrator concluded that “the doctors were simply writing what [the worker] told them to write and advocating on her behalf” rather than considering the modified duties or any new assessments. As a result, the modified duties offered were suitable, said the arbitrator.
The city met its duty to accommodate by making reasonable offers of modified duties and trying to address the worker’s concerns, said the arbitrator. However, the worker didn’t provide new medical information or accept the city’s return-to-work plans, so she didn’t sufficiently co-operate in the accommodation process, the arbitrator added.
The accommodation process may not always find a solution to everyone’s liking, but reasonable attempts must be made.
Open to new information
“The city followed the principles of accommodation sufficiently and had taken steps to attempt to accommodate her disability,” says Sultan. “Even when the city was insisting that she return to work, they still said that they would review any updated medical information - they continued to operate within the guidelines on the duty to accommodate.”
The arbitrator found that the worker expected to be using the litter vacuum, but there were legitimate reasons why she couldn’t and the bag-and-broom duties were part of the LEO position to which the worker agreed in the settlement.
The arbitrator determined that the worker’s refusal to return to work was not based on safety concerns, but her desire to not perform bag-and-broom pickup and just operate the litter vacuum. Although she may have felt some pain, her medical restrictions never significantly changed and she was allowed to work at her own pace, the arbitrator said.
The worker’s push for her desired accommodation got to the point where she was obstructing the accommodation process, says Sultan.
“Accommodation puts a pretty serious burden on the employer, but it does not mean that an employee has the right to select their ideal outcome,” says Sultan. “The arbitrator was convinced that she was just not happy with what was being proposed, despite the fact that she could do it, it was reasonable, and it was within the scope of her limitations.”
Undue hardship may be changing with the new hybrid workplace, according to an employment lawyer.
Met duty to accommodate
The arbitrator determined that the city met its duty to accommodate and the worker was warned multiple times that her employment was in jeopardy if she didn’t co-operate. Her continued refusal to attend work “left the city with no choice but to terminate the employment relationship,” said the arbitrator in dismissing the grievance.
The city met its duty to accommodate by being flexible and open with the worker, says Sultan.
“They consulted medical information when it came through, they took into account WSIB matters, they continued to be open to new medical information,” he says. “I think the arbitrator was impressed by the employer’s willingness to be open despite that - I suspect - the city had had it with this employee and they probably had already concluded that this employee was not operating in good faith.
“But they were consistent and they did not deviate from their approach, which was to do what they could within reason to comply with human rights obligations.”
See Toronto (City) v. Canadian Union of Public Employees, Local 416, 2023 CanLII 16173.
