Question 11
You asked: I am currently on Medical accommodation/Rehab program. Company screwed me over and dismissed me from a permanent position into Serviceperson position. How can the union help me? Thanks.
Let’s get into it.
Thank you for your question. I will preface my answer by saying what I have said in other blogs – I am an “educator” and not an “advocate” and my purpose is to give you and others a deeper understanding of the issue you are raising.
For this question you are raising the issue of “Duty to Accommodate” and, more specifically, in legal terms, the “Duty to Accommodate to the Point of Undue Hardship”.
It is an extremely important topic to understand but it is very important that everybody DOES understand it. It can affect anybody and knowledge in advance is a significant advantage to have.
You are also stating 3 “facts” that I am compelled to comment on:
[1] the “Company screwed me over”,
[2] the Company “dismissed me from a permanent position”, and
[3] the Company placed you “into Serviceperson position”.
You are also asking [4] “can the union help me?”.
There is a lot to discuss here and I will certainly make comment and analysis on all of the above but let me start by surprising you. The Union has already helped, otherwise you would not have been accommodated.
I will elaborate shortly but I must make it very clear at the outset that EVERY duty to accommodate placement/accommodation is the result of collaboration between the employer and the Union based on medical information submitted by your doctor(s). There is no other way that it can come about. I will explain in detail.
Before doing so I will say that I will not comment on how the Company screwed you over without knowing many significant details, including medical information. I do NOT need that information to answer your other questions but I cannot make fair comment on whether or not the Company “screwed you”.
What IS the Duty to Accommodate?
The duty to accommodate has its roots in Human Rights legislation related to discrimination.
It first appeared as a legal requirement in 1972 to amendments made to the US Civil Rights Act of 1964. The amendment was introduced to address “religious discrimination in the workplace”. It officially required employers to “reasonably accommodate” an employee’s religious practices unless it caused “undue hardship”.
That is the first use of the phrase as a legal concept.
In Canada, the concept of the duty to accommodate to the point of undue hardship is considered the cornerstone of modern labour and human rights law.
In the 1970’s In Canada, each province legislated a Human Rights Code prohibiting intentional discrimination. The 1982 “Simpson Sears Case” and the 1999 “Meiorin” case are the two significant cases providing the legal principles for all of today’s Human Rights cases.
It is important for all readers to understand that Duty to Accommodate is a VERY well used concept in Canadian Labour law and there is a ton of information available about it for anybody who wants to research it further on their own. Now that I have established the background and emphasized its importance, I will answer the submitted question.
In addition, the following should be noted:
“…Unionized employees are protected even if the collective agreement contains no express prohibition against discrimination, as the Supreme Court of Canada has said that the substantive rights and obligations of human rights statutes (and other employment-related statutes) are incorporated into every collective agreement over which an arbitrator has jurisdiction. As a result, redress for human rights violations is available through the grievance and arbitration process, whether or not the collective agreement includes express protections in this regard….”
Parry Sound (District) Social Services Administration Board v. OPSEU,
Local 324, 2003 SCC 42 (CanLII), Lancaster’s Human Rights and
Workplace Privacy, September/October, 2003.
We do have language in our CBA and I will discuss that shortly.
BC Human Rights Code
There are several sections of the BCHRC that deal with discrimination, but we are only going to deal with Section 13 (1) for our purposes:
Discrimination in employment
13 (1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.” (emphases added)
In plain language this means that if an employee becomes injured or disabled and is medically certified to have a disability, their employer cannot terminate their employment but must make every effort to “accommodate” them. There are multiple ways to accommodate and the solutions are all driven by the nature of the disability.
For example, I represented an office worker who had fibromyalgia. She was unable to remain seated for any extended period of time and the solution in her case was for the employer to replace her desk/chair with a portable desk where she could stand or sit as she preferred.
Another example was more complicated where I represented a janitor who injured her back but who also had bona fide teaching credentials and the solution was to transfer her from the Union she was in to the BC Teachers Union. Both Unions were at the same School District and although it was quite complicated the eventual “accommodation” was to have her become a teacher.
The far more common example comes from bus drivers who cannot medically continue to drive for any one of many medical conditions but are still able to do another form of work. Typically, these drivers are accommodated in “service worker positions”. I will explain in detail a little later how this common accommodation became so prevalent at CMBC.
First, I must explain the criteria used to establish the need for an accommodation in the first place.
[1] There must be an injury/disability identified by the employee that prohibits him/her from being able to perform their normal work duties.
[2] The injury/disability must be validated by medical documentation. This is usually the employee’s family doctor or specialist.
[3] The employer, being satisfied that the employee cannot perform the duties of his/her regular job, must get medical documentation as to whether or not the employee’s injury/disability is “temporary” or “permanent”.
This is clearly a determination made in consultation with the employee, the employee’s doctor and the union representative.
[4] The employer will request medical documentation that clearly indicates what duties the injured/disabled employee IS capable of doing.
[Given the sensitivity of medical information and personal privacy it is usually necessary for the employee to provide a medical release waiver to both the union representative as well as necessary management representatives working on the case.]
CBA Language re Accommodations
The Letter of Understanding #1 (LOU#1) appended to the CBA provides details for how the CMBC and Unifor have agreed to handle both temporary and permanent accommodations.
LOU #1
Rehabilitation Placements, Temporary And Permanent And Accommodations And Programs (Replacing LOU’s # 1 and #18 of the 2007 collective agreement)
Historical Background
The Parties initiated a General Worker program in 1995 to address the need for a sustainable rehabilitation program and to provide for permanent accommodations for disabled employees.
The Building Service Worker (BSW) program replaced the General Worker program.
Originally there were 10 permanent BSW positions available for permanent accommodations, as agreed by the Parties on the basis that there would be an offset to costs of the LTD Plan (employee paid).
In 2003, that was increased to 11 permanent positions.
In addition, temporary placements are also available within the BSW program to offset costs to the STD and LTD Plans.
Temporary Alternate Accommodations
The Parties have identified the following positions as Temporary Accommodations suitable for placement of disabled employees at CMBC: Utility Operator; Parts Truck Driver; Yard Sweeper; Temporary Building Service Worker; and Modified Serviceperson.
Temporary vacancies, resulting from disability, in the Serviceperson and Interior Cleaner classifications may also be identified as suitable Temporary Accommodations for short periods.
Temporary vacancies, resulting from disability, in the Serviceperson and Interior Cleaner classifications may also be identified as suitable Temporary Accommodations for short periods of time (not exceeding 6 months), with the applicable rate of pay for these classifications.
These Temporary Accommodation positions are intended to provide suitable Temporary rehabilitation employment for workers who have been rendered disabled from performing the duties of their regular job and who have medical support to perform the essential duties of the above referenced positions on a Temporary basis, as per the Job Demand Analysis (JDA) for these positions.
The RTW Committee may recommend other positions for suitable temporary or permanent placements, from time to time or as the opportunity and need arises. Placement Protocol Placement into these positions shall be coordinated by the Occupational Health Group as per the protocol between the Parties. It is intended that disabled workers who are placed into the above referenced positions will occupy these positions until they receive Medical Clearance to return to their regular job or for a maximum period of six months.
Extensions of these time limits may be agreed to between the OHG and the Unifor Rehabilitation Coordinators, in exceptional circumstances, for short durations.
Permanent Accommodations Employees who:
1) are unable to return to their regular job in the foreseeable future; and
2) have medical support certifying that they are permanently disabled from their own occupation; and
3) are medically cleared to perform the work of other classifications, as per above, at CMBC; or
4) have been approved by their physician and the OHG as capable of performing the essential duties of the positions, shall be placed in the Accommodations Process for consideration for permanent alternative employment within CMBC as per the agreed to Placement Protocol.
It is expected that the Company, the Union, and the Employee will participate in the Accommodations Process and that the employee will accept reasonable accommodation to work that does not have an adverse affect on his/her specific medical condition.
The Building Service Worker (BSW) Permanent Accommodation Positions
The Parties agree there are seventeen (17) BSW positions available for Permanent Accommodations. The Parties agree that these positions are reserved for employees who are unable to perform any other alternate work.
The parties further agree that a pro-active, progressive approach to address employees requiring permanent accommodations into the BSW (and other positions), needs to be implemented expeditiously. Therefore, the Parties agree to meet within three (3) months of entering into this LOU to review the current BSW program effectiveness, including exploring a means to increase the number of BSW positions to allow for accommodating employees who are waiting for permanent accommodations, at any given time.
This review will also include an analysis of the use of the BSW program as a “flow-through”, temporary accommodation vehicle, for employees requiring such a rehabilitation in accordance with LOU 32.
The Parties agree that there are significant benefits derived from the introduction of cooperative rehabilitation programs and further that identifying placement opportunities for disabled workers at CMBC, in all jurisdictions, is beneficial to all parties.
The Rehabilitation / Return To Work Committee
The Parties agree to address issues involving permanent and temporary accommodationsthrough the Rehabilitation / Return to Work Committee, as set out in LOU #32. Effective February 5, 2013 Revised effective December 5, 2019 Revised effective April 13, 2023
It is obvious that both the Union and the Company have spent a significant amount of time dealing with the issue of “accommodation”.
Again, in response to your specific question, I cannot comment on how or why you think “the company screwed” you. I will say that you definitely were not “dismissed”. Indeed, you were put into the position of a “serviceperson” in strict accordance with the above LOU.
Finally, I must say that the Union HAS already helped you (and should continue to do so). It is IMPOSSIBLE to get an accommodation without the Union being involved.
I hope this sheds light on the topic for you and any other members interested in the “duty to accommodate”.
Thank you for your question.