'It's not supposed to be flawless – it's not about perfection'

“The reasonable accommodation obligation applies to the process as well as the outcome, and it's not supposed to be flawless - it's not about perfection.”

So says Peter Mueller, a labour and employment lawyer at Taylor McCaffrey in Winnipeg, after a Manitoba arbitrator dismissed a worker’s grievance over an alleged failure to accommodate her physical restrictions during her pregnancy.

The worker was a paramedic for the Prairie Mountain Health region based in an ambulance station in Roblin, Man. The collective agreement between Shared Health Employers Organization - of which Prairie Mountain Health was a part - and the union contained an article stating that both parties were “committed to reasonable accommodation” that was a shared responsibility between employees, the employer, and the union.

The worker became pregnant in 2022 and had to take a couple of weeks off in October. She provided a medical note for her absence, but the note didn’t indicate a reason.

On Oct. 27, the worker advised the district manager that she had been put on light duties and needed accommodation for her next scheduled shift in two days. She provided an “Assessment of Injury or Illness” form that was filled out by her health care practitioner confirming that she needed “light duties” until the start of her maternity leave in April 2023. The form indicated that the worker had no material limitations on physical or cognitive abilities and she had full abilities for gripping and grasping up to 20 pounds.

Accommodation search

Shared Health started looking for accommodation opportunities for the worker, but it informed her that her medical note didn’t have enough information to assess her accommodation needs, as it didn’t include any details on her lifting and carrying abilities. The worker said that she couldn’t do “heavy lifting.”

The union suggested that the worker be accommodated by working in a personal care home, as this had been done when the worker was injured at work previously. However, a restructuring of the Manitoba health care system had put personal care homes under a different employer, so Shared Health was unable to accommodate the worker in that way. The union also suggested that the worker could “ride third” on an ambulance, but Shared Health said that it wasn’t possible without more clarity on the worker’s abilities around carrying weight. In addition, a third paramedic generally only rode in an ambulance when new paramedics were being trained or someone was returning after a lengthy leave of absence as part of a graduated return to work.

The worker provided another version of the form that stated the worker shouldn’t lift stretchers loaded with patients. The form also indicated that the worker could lift up to 35 pounds, but not above the shoulder or carrying.

The parties later discussed the possibility of the worker performing bundled administrative duties, but the opportunities were in towns that were far from the worker’s home. Shared Health continued to search for modified duties for the worker, but it took several weeks to find administrative duties that were available. The union pushed for riding third on the ambulance or performing in-station duties to assist the ambulance team, but Shared Health didn’t consider these as options because both those roles would involve duties that were within the job of the two paramedics assigned to the ambulance. In addition, Shared Health’s concerns over the worker’s carrying abilities were a concern for riding in the ambulance.

The worker provided some more forms, but they had essentially the same information and comments about “no lifting of stretchers loaded with patients.”

Duty to accommodate

On Nov. 14, the union filed a grievance. The worker claimed that Shared Health failed to meet its duty to accommodate under the collective agreement after she provided the medical note on Oct. 27.

On Nov. 25, Shared Health found the worker an accommodated position performing project work at another station when a position became open, but the union continued with the grievance relating to the month when the worker wasn’t given any work.

The arbitrator found that Shared Health had taken reasonable steps to identify accommodation opportunities within the constraints of the worker’s medical restrictions and its operational requirements, noting that the duty to accommodate has both procedural and substantive components – the former requiring the employer to obtain all relevant information and seriously consider how the worker can be accommodated, while the latter requires the employer to accommodate up to the point of undue hardship.

Shared Health repeatedly requested clarity on the worker’s lifting and carrying restrictions after receiving insufficient information from her health care provider, said the arbitrator. While the worker argued that Shared Health should have commissioned a functional capacity evaluation or provided more direction on the medical forms, the arbitrator found that it should have been obvious what Shared Health needed based on the discussions and the lifting and carrying requirements of the paramedic position.

The arbitrator also found that Shared Health explored various accommodations, including administrative roles and in-station duties. The worker was ultimately assigned sedentary project work after an opportunity became available.

“It was abundantly clear that [Shared Health] was looking for clarity on what they understood to be some general restrictions with respect to lifting, and they needed those details in order to actually discharge their end of the reasonable accommodation process and look for options,” says Mueller. “In a perfect world, maybe they would have put it out there directly, but it really sounds like this was a reasonable process.”

Meaningful work

The arbitrator rejected the union’s suggestion that the worker could have been accommodated by riding third on an ambulance or performing administrative tasks at her home station. These roles wouldn’t constitute "meaningful work" as required under the duty to accommodate, nor would they align with the employer's operational needs, said the arbitrator, noting that the worker was only given administrative work at a different station when a position became available.

The duty to accommodate doesn't extend to “make-work” projects and the employer is within its rights to look for accommodated work that's meaningful and productive, says Mueller.

“The worker was ultimately accommodated [with administrative duties], but there happened to be a vacancy that opened up later on in the process and so that did become meaningful work,” he says. “But the bundling of duties that the union proposed early on in the process wasn’t - the arbitrator didn’t fault the employer for not going that route at that time, as it wouldn’t have been productive for the employer.”

The arbitrator also agreed with Shared Health’s position that trialing the worker in a third-person ambulance role posed undue risks, citing medical concerns about her capacity to lift or carry equipment and potential liability for injuries to the worker and patients.

“There was a back-and-forth about getting the exact restrictions for lifting or carrying and the union was basically wanting to have the worker a trial [riding third],” says Mueller. “That would be undue hardship, basically putting an employee into a position where there's risk to themselves and patients when there's unclear medical information at that time.”

The union also alleged that pregnant paramedics were treated differently from other employees with physical restrictions who were allowed to ride third. However, the arbitrator found no evidence of discrimination in the accommodation process or its broader practices for assigning paramedics to ride third, noting that Shared Health’s approach to accommodating pregnant employees was consistent with its treatment of other employees presenting with medical restrictions.

“There just was a lack of evidence for the union to say, ‘Here's an employee with a different restriction that could be due to a disability and they were accommodated by riding third,’” says Mueller. “There was no comparator to show an obvious distinction with how pregnant employees were accommodated versus non-pregnant but disabled employees were.”

Reasonable, not perfect, accommodation

The arbitrator determined that Shared Health had discharged its duty to accommodate and dismissed the grievance, noting that the accommodation process must be reasonable and based on operational feasibility, rather than expectations of "make-work" assignments or positions that exceed the employer's functional requirements.

Shared Health was in a strong position because it followed the basic principles of the duty to accommodate – including the procedural and substantive components - while understanding that in a unionized environment it’s a three-way process involving the employer, the worker, and the union, says Mueller.

“It's not a standard of perfection, so it was a reasonable approach on both the procedural end and the substantive end, because ultimately the worker did start working sedentary duties after about one month,” he says. “This was a case where the union and the worker were coming to the employer with specific ideas of what they wanted, and the employer had a rational basis to decline those things – but at the same time they continued their search to figure out what could be done.”

See Manitoba Association of Health Care Professionals v. Shared Health, 2024 CanLII 122938.