Arbitrator finds employer met its duty after worker admits directing her physician
A Health Care Aide who admitted she instructed her physician to clear her for full duties despite knowing she could not safely perform them has lost her bid to prove her employer failed to accommodate her disability.
In an award issued April 22, 2026, sole arbitrator Michael J. Hughes dismissed three grievances filed by the Alberta Union of Provincial Employees against Bethany Care Society, along with a retaliation claim tied to a human rights complaint. The decision turns on a candid admission at the hearing: the grievor steered her own medical documentation to keep her 0.9 full-time-equivalent income, then later argued the employer should have known the notes were unreliable.
A return to work that unraveled
The grievor returned to full duties on November 28, 2022, after her physician declared her "medically fit and safe to return to work WITHOUT ANY ACCOMMODATIONS," reversing restrictions that had been in place a day earlier. An HR Business Partner internally flagged the new note as "totally contradictory" with prior information.
Coworker concerns followed in the months after. By March 2023, two Health Care Aides separately raised concerns about the grievor's performance, including reports that she was relying heavily on others for help, was avoiding call bells, and was complaining of pain at work. The employer launched a workplace investigation and requested updated medical information.
A new Functional Abilities Form in April 2023 imposed permanent restrictions, including no lifting above waist or shoulder level and no pushing or pulling of residents. The employer offered a 0.4 FTE modified role matched to those limits, which the grievor took on under duress before going on a workplace stress-related leave days later.
The admission that changed everything
At arbitration, the grievor acknowledged she had directed her doctor's clearances on multiple occasions. Hughes wrote that the physician chose, "rather than act as an objective source of medical insight, he would instead effectively play the role of Ms. Breton's medical advocate."
Hughes addressed the employer's right to rely on the documentation it received, citing earlier authority: "where there is a valid medical certificate it will, except for very unusual circumstances prevail over a lay opinion."
He also addressed the employee's role in the process, noting that the grievor "instructed her doctor to clear her for a full return to work without restrictions, when she truly felt that such a medical assessment would be inaccurate."
Why the employer prevailed
By December 2024, restrictions barred the grievor from working with anyone who could "pull or grab at her arms," a limitation her physician confirmed in a clarified Functional Abilities Form. The employer reviewed positions across its operations against those restrictions.
It offered her an Adult Day Program role, which she rejected because it was casual, non-union, and paid less than her HCA line. In April 2025, she was placed on unpaid medical leave and was successful in her application for disability benefits.
Hughes found the accommodations reasonable at every stage. He concluded that "barring clear contrary indicators, including opposing medical information or experience at the workplace which clearly called the medical clearance into question, employers should defer to an assessment provided by an employee's physician."
