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May 22, 2019
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OVERVIEW

In Middlesex London Emergency Medical Services v Ontario Public Service Employees Union, Local 147, Arbitrator Steinberg considered whether the employer had accommodated the grievor's pregnancy to the point of undue hardship. Arbitrator Steinberg found that the employer had failed to accommodate the grievor, though the employer’s defence of undue hardship nearly succeeded. As a result, the arbitrator awarded only minimal damages to the grievor because he found that the employer had acted with "due regard for [the grievor’s] fundamental rights" under the Ontario Human Rights Code.

The decision raises questions about when employees should alert their employers about accommodation needs, and what collaborative role employers, unions and employees should play in proactively seeking out modified roles for employees requiring accommodation.

FACTS

The grievor worked in the employer's emergency medical services company. The workplace featured two classifications in the bargaining unit: Primary Care Paramedic ("PCP") and Advanced Care Paramedic ("ACP"). The employer also employed managerial employees and logistics employees, both of which are non-bargaining unit positions—the latter is a source of modified work opportunities for employees in the grievor’s bargaining unit.

The employer maintains a list of employees who require modified work, who are ranked on the list solely based on the date of their disability. In September 2014, the grievor alerted the Human Resources Coordinator ("HR Coordinator") that she was pregnant, and would require modified duties in the future. On January 5, 2015, the grievor's doctor restricted her to modified duties due to her pregnancy.

When an inquiry by the HR Coordinator failed to provide a modified position for the grievor, she filed a grievance on January 8, 2015 claiming that the employer had failed to accommodate her pregnancy. The employer eventually offered her modified work, commencing March 2, 2015 until the birth of her baby in May 2015.

THE ARBITRATION

At arbitration, OPSEU argued that it is predictable that the employer would have to provide temporary modified work to pregnant employees and that such accommodation was flexible due to its temporary nature.

OPSEU and the grievor asserted that a number of suitable jobs could have been offered to her prior to March 2015. These jobs included working in Community Paramedicine and assisting in the Race Against Drugs ("RAD") program. To support its position, OPSEU cited Central Okanagan School District No 23 v Renaud  for the proposition that more than negligible effort is require to satisfy the duty to accommodate.

The employer argued that the nature of the work (i.e., the need to lift), and the demographics of the workforce (i.e., nearly 40% female, many of whom are of child-bearing age), meant that the demand for modified work significantly and continually exceeds the supply.

The employer further asserted that the potential jobs proposed by OPSEU, such as "Riding Third" (i.e., working as a third paramedic in a vehicle), would amount to creating a new, unproductive job for the purposes of accommodation. The employer cited Automodular Corporation v CAW-Canada, Local 1256 in support of the proposition that "modified work has to be productive" and "it would … be undue hardship to require an employer to provide make-work."

Arbitrator Steinberg ultimately agreed that certain jobs would not have been productive work and would constitute undue hardship. The arbitrator, however, found that the employer failed to consider the appropriateness of the RAD and Community Paramedicine opportunities, which violated its duty to accommodate.

The award for the grievor was limited to $500—significantly less than the $25,000 OPSEU sought—with the arbitrator determining that that there was "no evidence about the impact of the employer's failure to accommodate on the Grievor's dignity, feelings or self-respect."

TAKEAWAY   

While the nature of the bargaining unit had an impact on the process that would ultimately inform the arbitral decision, this case showcases the difficulty that pregnant women may face in seeking workplace accommodations. The grievor provided the employer four months' notice regarding her pregnancy and need for modified duties, and yet the employer failed to provide her with adequate accommodation.

Union representatives and employees who are expecting would be wise to submit timely accommodation requests and consider reminding employers of upcoming requirements for modified work. While the onus for finding appropriate accommodation rests with the employer, employees may benefit from maintaining a dialogue with employers about potential modified job opportunities.

As well, where a lack of accommodation leads to injury to dignity, feelings and self-respect, employees may be well-served by communicating the impact of the employer’s conduct and saving any records of those communications. Otherwise, there may be little evidence of the impact of the employer’s discriminatory conduct and reduced damages awards as a result.

If an employee feels that their accommodation request is not being honoured, it is a good idea to seek legal advice.

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