Stubborn employer causes accommodation stalemate

Employer claimed worker didn't co-operate, but offers didn't follow medical information

Stubborn employer causes accommodation stalemate

An employer who didn’t follow a worker’s medical information and was unable to prove undue hardship failed to accommodate the worker, the Alberta Human Rights Tribunal has ruled.

The worker began employment with Alberta Health Services (AHS), the province’s healthcare provider, in 1992. She held various positions over the course of the next couple of decades, eventually working as a registered nurse.

The worker developed sensitivity to elements in the environment such as mold. She initially didn’t link her symptoms to work, but that changed when she began experiencing them in the workplace.

In August 2016, the worker notified AHS of her symptoms, so AHS conducted an inspection and air quality testing in the building where she worked. The visual inspection didn’t find any mold in the building, so AHS decided not to proceed with mold-specific testing due to the expense.

The worker did some research and discovered that she might have chronic inflammatory response syndrome (CIRS). She saw a specialist who diagnosed her with CIRS in December 2016 and explained that it was caused by exposure to water-damaged buildings. The worker’s family doctor confirmed the diagnosis after researching the condition.

Worker requested environmental testing

In October, the worker asked AHS to allow her to carry out an environmental relative moldiness index (ERMI) test at her own expense, to help confirm her diagnosis and treatment plan. She confirmed that the test would not affect operations.

On Nov. 30, AHS declined the testing, as its workplace health and safety department reviewed the ERMI test and found that it wasn’t an industry standard test and it wasn’t widely accepted in the medical community, so it couldn’t use it as part of its standard process and policies. It also said that it had to protect all of its employees and it wouldn’t grant permission to conduct the test in a building that it  only leased and didn’t own.

The worker provided a medical note in January 2017 that stated that ERMI testing should be done in the building before the worker could return to work. The specialist indicated that the ERMI test was a useful tool in determining buildings where a CIRS patient might be at risk, even if it wasn’t recognized as an industry standard. The worker also submitted a formal request for accommodation that asked to avoid working in water-damaged buildings and any of her potential workplaces be ERMI tested as recommended by her doctor.

However, AHS once again declined to conduct ERMI testing. The worker responded by saying that she was willing to use HERTSMI-2 testing, which was a derivative of ERMI that was cheaper and looked at fewer types of mold, but AHS declined for the same reasons.

AHS said that it would only offer a visual inspection or, alternatively, the worker could review the job vacancy list to see if any registered nurse positions were available in other buildings – although it would not conduct tests in other buildings either.

Gap between recommendations and accommodation offer

Neither of the accommodation options were consistent with her doctor’s recommendations, so the worker asked for clarification on whether a building was safe for her to work in based on her diagnosis. AHS reiterated its accommodation offers and said that “the medical documentation does not support your assertion that you cannot work in any location or premises within AHS in the absence of ERMI or HERTMI-2 testing.”

In April, the worker said that she could not work in a building that had not been tested and provided another medical note clarifying that testing was required to determine the likelihood of the worker being sickened by the worksite. AHS replied that her medical documentation supported her ability to work as a registered nurse in any building that was not water-damaged, the tests weren’t accepted standards in Canada, the building had been fully checked and hadn’t suffered further water damage, and she had been deemed fit for work by the third-part disability insurance provider and the worker’s compensation board.

Further medical documentation indicated that the risk to the worker could be predicted with the testing. On June 7, AHS made three offers of accommodation – a return to her regular building with a visual inspection only, a review of current vacancies without any testing, or a return to work with personal protective equipment (PPE) such as a respirator.

The worker asked for clarification of the PPE proposal and proposed remote work involving the province’s health link telephone line. She reiterated that ERMI and HERTMI-2 testing was non-invasive and would allow her to return to work if the risk wasn’t coming from the building, or to identify a safe workplace.

The two sides were unable to reach an agreement and the worker’s employment was terminated. The worker made a discrimination complaint, alleging that AHS failed to accommodate her physical disability. AHS argued that its actions were reasonable and justifiable, as the worker didn’t co-operate in the search for ways to accommodate her.

Uncommon condition

The tribunal noted that CIRS was not a common illness and her symptoms were not well-known, so it wasn’t surprising that AHS didn’t have a standard policy to deal with it. In addition, it made sense that the ERMI and HERTSMI-2 testing methods were also uncommon and still being debated in the medical community.

However, the tribunal found that the debates over the validity of the tests were not reason to reject them. There was no evidence that they would impact operations and the worker and her medical documentation explained how they would be conducted and how they would help in accommodation. In addition, although AHS said that they didn’t want to conduct such testing in a building that it didn’t own, there was no evidence that it requested permission from the landlord and was refused, said the tribunal.

The tribunal also found that there was no evidence that the testing would pose any risk to other employees, despite AHS expressing concern over health and safety issues.

The tribunal also had difficulty with AHS’ argument that the worker didn’t co-operate in the accommodation process. There was regular back-and-forth communication and the worker provided medical evidence supporting her position on more than one occasion. The communication continued until they reached a stalemate, the tribunal said.

New offer not consistent with information

The tribunal noted that late in the game, AHS offered an option of the worker using PPE at work. This was not based on any information from the worker’s doctors and AHS acknowledged that it was based on the opinion of the manager of the workplace health and safety department who had no medical background. Making this offer without checking with the medical professionals who made the recommendation of accommodation in the first place was not consistent with the accommodation process, the tribunal said.

The tribunal found that the worker tried to address misconceptions that AHS had, but AHS “seemed stuck in their position that the offers being presented… were reasonable.” The medical information indicated that testing would help the worker return to work and was non-invasive to AHS operations, but AHS continued to refuse and make accommodation offers that didn’t follow the medical recommendations, said the tribunal in finding that AHS didn’t meet its duty to accommodate to the point of undue hardship.

The tribunal determined that the worker established that she would return to work, but AHS deprived her of an opportunity to work, and the worker’s disability was a factor. See Prescot v. Alberta Health Services, 2023 AHRC 30.

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