In Tumber v. FlexiForce Canada and another, 2020 BCHRT 132, the BC Human Rights Tribunal accepted an employer’s argument that it had adequately handled an employee’s medical leaves and graduated return to work.
Mr. Tumber filed a human rights tribunal complaint against his employer, FlexiForce Canada Inc., alleging that they discriminated against him in his employment by failing to accommodate his physical disability contrary to section 13 of the Human Rights Code.
Mr. Tumber was a labourer in the plastics department at FlexiForce and worked on the afternoon shift. The plastics department performed the lightest work duties at FlexiForce.
In November 2017 Mr. Tumber was absent from work due to an accepted WorkSafeBC claim. In February 2018, Mr. Tumber returned on a graduated return to work plan where he was accommodated for light duties. Shortly after returning Mr. Tumber went on an extended leave. In July 2018, Mr. Tumber returned to work from his extended leave on modified light duties and was assigned to day shift and not his regular afternoon shift. In August 2018 Mr. Tumber went off work due to a shoulder and back injury.
In December 2018 Mr. Tumber was ready to return to light duties. Before returning, FlexiForce requested Mr. Tumber undergo an Occupational Fitness Assessment to determine his accommodation needs. The assessment was completed in December. It recommended a gradual return to work with light duties for two weeks, moderate duties for two weeks, and then a return to full duties.
FlexiForce advised Mr. Tumber that based on the limitations in the assessment that they could not accommodate him at that time. They noted that the work in the plastics department was considered light work and he had difficulty with the work assignments when he previously returned in July. FlexiForce was concerned that returning to the same type of work that has been shown to exceed his tolerance creates an ongoing risk of injury.
Mr. Tumber told FlexiForce that he was cleared by his doctor to return on a graduated return to work program. On January 16, 2019, FlexiForce said it required a medical note confirming Mr. Tumber’s ability to perform regular duties (but they would accommodate him) and he would need to work in either the Plastics department on day shift, the Riveting department on day shift, or the Bending department on either a day or afternoon shift. Mr. Tumber responded that he would return to the Plastics Department (the lightest work) but wanted to work two days per week on afternoon shifts to accommodate his orthodontic appointments and doctor’s appointments for his parents. FlexiForce said they could not accommodate Mr. Tumber in working two days per week in the afternoon and three day shifts.
The next day Mr. Tumber filed the Human Rights Tribunal Complaint. A few days later Mr. Tumber provided a doctor’s note outlining a return to work plan with one week light duties, one week of moderate duties and then returning to regular duties.
FlexiForce said they could accommodate Mr. Tumber as suggested by the doctor’s note and he could return to work immediately. Mr. Tumber accepted and returned to work a few days later.
FlexiForce applied to the Tribunal to have the claim dismissed.
Can FlexiForce raise a successful defence in justifying that their conduct of requiring an assessment and further medical information prior to returning Mr. Tumber to work was a bona fide occupational requirement?
Once an employee establishes a prima facie case of discrimination, the employer must justify a workplace standard or prove a bona fide occupational requirement. To do so, they must prove that:
- the workplace standard is rationally connected to the performance of the job;
- the employer adopted the standard in a good faith belief it was necessary to accomplish the purpose identified in criterion one; and
- the standard is “reasonably necessary” to the accomplishment of that legitimate work-related purpose. This includes demonstrating that the employer cannot accommodate anyone negatively affected by the standard without incurring undue hardship.
The Tribunal found that the general accepted manner in assessing an employee’s fitness for work is by seeking medical information especially where there is a prior issue of fitness for work duties. FlexiForce behaved in good faith in trying to establish Mr. Tumber’s abilities and limitations to perform the work duties. FlexiForce had an obligation to ensure Mr. Tumber’s health and safety. They were aware that Mr. Tumber complained his regular duties were impacting him negatively on his physical health. The Tribunal noted Mr. Tumber was already doing the lightest work available. The Tribunal found it was reasonably necessary to require Mr. Tumber to participate in the December 2018 assessment to determine his sustainability to return to work. Similarly, the request for further medical information was reasonable.
The Tribunal found it was reasonably certain that FlexiForce would establish at a hearing that their requests for medical information were justified as a bona fide occupational requirement. Accordingly, the allegation that FlexiForce discriminated by requesting the assessment and a medical note confirming Mr. Tumber was fit to return to work had no reasonable prospect of success.
The Tribunal granted FlexiForce’s application and dismissed Mr. Tumbler’s complaint.
The Tribunal’s decision reminds us that the employer has to justify a workplace standard if a prima facie case of discrimination is established. A workplace standard must be made in good faith and for a purpose that is connected to the performance of the job. Further the standard needs to be reasonably necessary to accomplish the work related purpose such that an employer could not accommodate the employee without undue hardship.
The Tribunal’s decision also confirms that requesting further medical information from an employee and even having an employee attend an assessment before returning to work can be a reasonable workplace standard, especially if there are prior concerns of fitness for work duties.