[author Adrian Miedema]
An Ontario arbitrator has held that an ambulance attendant was entitled to be accommodated by the employer, by permitting him to “ride 3rd” in an ambulance despite a potential but not actual risk to his safety.
The ambulance attendant had been injured when he stumbled on a step at a patient’s location. A physician medically cleared him to return to work, with the only restriction being that he could not lift more than 40 lbs. The employee asked to be temporarily accommodated by having him be the third crew member in an ambulance in order to allow “gradual re-integration and maintenance of his ACP paramedic skills”; the employee and employer both agreed that a third crew member is not generally required in an ambulance.
The employer argued that it would be unsafe for the employee to work as a third crew member in an ambulance, due to the fact that the employee had remaining lifting restrictions. The employer offered to accommodate the employee in “other modified duties” until he was “cleared 100% to return to regular duties”. The employer referred to its obligation to protect the safety of workers under the Occupational Health and Safety Act. The employer pointed to the risk of confrontations with “un-cooperative or mentally challenged, or disoriented” patients as one risk that an injured employee would face on ambulance duty.
The arbitrator held that the safety risks identified by the employer were inherent in the work of a paramedic, and that the specific safety risks to the employee were speculative and potential – not actual – safety risks. The arbitrator held that the employer was required, under the Human Rights Code, to accommodate the grievor by allowing him to “ride 3rd” in the ambulance.
Interestingly, the arbitrator noted that an employee with a disability should be permitted to “assume risk” in order to be accommodated in the workplace. According to the arbitrator, the employer is not permitted to refuse to accommodate solely because there is some risk to the employee from returning to work.
Brant (Country) v. OPSEU, Local 256, 2102 CarswellOnt 2856