A railway company failed in its duty to accommodate when it didn’t consider reinstating a worker with physical restrictions to his home position with modified duties as the first step in accommodating his return to work, a federal arbitrator has ruled.
The decision highlights the fact that there can be multiple parties involved in bringing an employee with an injury or disability back to work, but it doesn’t change the employer’s duty to accommodate, says Stephen Torscher, a labour and employment lawyer at Carbert Waite in Calgary.
“There might be a benefits provider or an occupational health and safety department that looks into the physical restrictions and the doctor’s notes,” says Torscher. “Those parties have an obligation to protect the privacy of the employee and they can’t always share the details of the employee’s medical history and diagnosis – the employer is only entitled to the prognosis and the restrictions that are necessary in order for the employee to function safely in the workplace.”
