Work in fire services is inherently dangerous. Fire fighters are acutely aware of these dangers, but may not fully understand their employers' obligations in accommodating disabilities that arise from injuries to workers. More importantly, municipalities themselves often do not fully understand their responsibilities and obligations.
It's A Matter of Human Rights
Human rights legislation makes it clear that no employer can discriminate based on disability or handicap. The terms include not only disabilities arising from injury but also birth defects and illness. The terms cover both physical disabilities and mental or psychological disorders and learning disabilities. Every fire fighter is covered by a human rights statute, whether federally or provincially. Where there is a collective agreement in place, fire fighters have the right to defend these rights through their association, using the grievance and arbitration procedure outlined in their collective agreement.
The law also says that a municipality cannot take action against a fire fighter with a handicap, or impose a work rule or qualification that has the effect of discriminating, unless the municipality can prove that it has to do so to avoid suffering undue hardship.
The definition of "undue hardship" is a function of the costs involved in accommodating the employee, the sources of funding available to the employer to help with the accommodation, and health and safety requirements in the workplace. The standard is so high that the Supreme Court of Canada has said an employer must show that it is impossible to accommodate the employees without suffering undue hardship. The Court also says that an employer should expect that there may be some hardship involved in any accommodation. Just showing that there is hardship is not enough to justify discriminating against a disabled employee. The case law illustrates that any employer who wants to impose a rule or take action against a disabled employee has to ask some very important questions.
In one promotion case, the questions were identified as follows:
- Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
- If alternative standards were investigated and found to be capable of meeting the employer's purpose, is there a good reason why they were not used?
- Is it necessary to have all employees meet a single standard in order for the employer to accomplish a legitimate purpose, or could different standards for groups of employees or even individuals be set up?
- Is there a way to do the job that is less discriminatory while still accomplishing the employer's purposes?
- Is the standard properly designed to ensure that the qualifications are met without placing an undue burden on the individual employees and the group as a whole?
- Has any other group, including a union or individual employees, done what they can to search for other possible accommodation?
Arbitrators and the Courts have strongly asserted that employers must be aware of and accommodate the differences between individuals and groups of individuals when they deal with disabled employees. As the Supreme Court puts it, "they must build conceptions of equality into workplace standards."
The Supreme Court goes on to say that the employer has a legal obligation to be able to show that it has considered all viable forms of accommodation. If an employer has rejected all of these forms, they must be able to show why each rejection was reasonable.
Keeping Workers on the Payroll Is Not Enough
Some employers, not fully understanding their obligations, have taken the position that their duty is to keep an employee on the payroll but little else. Nothing could be further from the truth. The employer has an obligation to look creatively for "real" work for an employee that will allow him or her to remain a productive element in the employer's workforce. The notion of simply finding any way to keep the individual on the payroll, without regard to their current or former work experience (sometimes known as "warehousing") does not satisfy the employer's obligation.
Generally, arbitrators will look to accommodation in the following order:
- The employee's own job with modifications to the workplace
- The employee's job, with some modifications to the duties
- The employee's own job, with some restructuring of the duties, perhaps involving some reasonable reallocation of work between employees
- A job or work which is reasonably similar to the employee's previous job, within the bargaining unit
- Reasonably similar work within the employer's operations"
- Reasonable work with the employer for which the employee is suited by reason of his or her education, training or experience
The accommodation should be well spelled out in an agreement or protocol, with the Association's input. There should be proper feedback to the employee and monitoring of progress. Finally, the parties should be sensitive to adjusting the accommodation protocol as the needs of the disabled employee change.
Creative Solutions are the Key
How do these obligations apply to the fire service? Thinking in terms of fairness and equality for persons with a disability requires the employer, association and employee to cooperate to find a suitable accommodation – even if it means doing things differently within the workplace. The following examples demonstrate a range of accommodation measures.
A fire fighter may become aware that he or she has a learning disability that includes difficulty with reading (dyslexia). For a probationary fire fighter, this disability may require the employer to grant extra study time in preparation for exams, tutoring by another fire fighter, or more individual time with the instructors. For the more senior fire fighter, it may require a transfer of regular station paperwork to another fire fighter or station captain. Where these administrative duties are a critical part of the evaluation for promotion, it may require some flexibility or even discounting of that particular criterion. The employer may be required to provide training for the member to assist in overcoming his/her dyslexia. In this case, the employee would be expected to participate.
It is not uncommon for a veteran fire fighter to have mild to serious recurring injuries or illnesses, like back problems or cardiorespiratory illness. In these circumstances, the fire fighter is often required to abstain from fire suppression duties. Very often these members take on duties within other divisions of the department: maintenance, communications or fire prevention. While these areas have served as default assignments for injured members, employers are required by law to give more thought to these simple warehousing actions.
Although it should seem obvious, employers are also required to give careful consideration when assigning duties to fire fighters with disabilities. For example, one would not assign a fire fighter with a back or knee injury to a job that requires lifting or climbing stairs. Similarly, a fire fighter with a back injury may not be suitable for administrative, research or even dispatching duties that require the member to sit for long periods of time.
In considering the duty to accommodate, the employer must also be mindful of training that can be provided to a fire fighter that would qualify him or her to perform non-suppression duties. For instance, a fire fighter with a longer term disability may be quite suitable for training to oversee self-contained breathing apparatus maintenance. Similarly, a fire fighter may be trained to perform maintenance work on computer databases or communications equipment.
A Fire Prevention Officer (FPO) who has a sleep disability (sleep apnoea, diabetes, insomnia) may require accommodation in the form of reconfiguring his or her duties (often referred to as "rebundling") to eliminate the requirement to perform stand-by and call-out duties.
Dispatchers who have suffered a stress-related illness may be accommodated in many different ways. They may be assigned to more stress-free duties upgrading or maintaining CAD systems (computer-aided dispatch). They may also undergo a "job-hardening" process where they work a limited number of hours in their dispatch position. Depending on the nature of the disability, the job-hardening process may involve only partial days of work, either alone or combined with other stress-free functions to make up a full day. The purpose of jobhardening is to phase the fire fighter's return to work over a longer period of time. Where the job-hardening is not combined with other stress free work, the employer and the association may be required to modify the fire fighter's pay to reflect only those hours worked. For other reasons, it may be important to clarify that this is not the introduction of part-time work in the bargaining unit, but rather a full time member working under a human rights accommodation arrangement.
In all of the above examples of disability there is a requirement on the part of the fire fighter to provide the necessary medical information to support the accommodation requests. This may require going beyond the typical sick leave certificates and including a detailed doctor's assessment of the person's limitations. The member and the Association have to work with the employer to make sure that reasonable limits are set on the amount of medical information the employer will get and keep. The information (diagnosis, prognosis and similar details) should be sufficient to allow proper accommodation.
Employers may argue that they are not required to create a new position in meeting their accommodation requirements. As mentioned above, however, the Supreme Court of Canada has clearly indicated that, to give purpose to human rights legislation's accommodation obligations, employers must make real efforts. It is felt by many that in the public sector the threshold of "undue hardship" is extremely difficult for an employer to reach. This does not mean, however, that the size of your employer will not have some impact on the nature of the employer's obligation to accommodate.
Department Size Is A Factor
A large fire department within a larger municipality will likely have no difficulty finding accommodation duties for a fire fighter within the fire department structure. Few Fire Chiefs could make a persuasive argument that they could not accommodate a fire fighter (depending on the nature of the member's disability).1 This may not be the case with a smaller department or municipality. While there are still significant obligations on the part of the employer, accommodating disabilities in a fire department with four or six full-time fire fighters may be more challenging.
People often ask whether the accommodation obligation can extend beyond the bargaining unit, and therefore the coverage of the collective agreement. The simple answer is yes. However, the employer will have to go to great lengths to demonstrate that all efforts at accommodation have been attempted within the bargaining unit. If the member can only be accommodated in another service within the municipality, then this is a reasonable accommodation. Because of the implications of this type of change, unions must work vigilantly to ensure that the employers are not just shuffling a medical "problem" onto someone else.
In spite of the complexity of the duty to accommodate, what remains consistent is the requirement that the employer give real and careful consideration to the fire fighter's limitations and the possibilities of assigning work. This consideration must extend far beyond the historic warehousing attitudes of many fire department administrations.
Although our examples of accommodation have focussed on fire fighters with disabilities, it is also important to note that the duty to accommodate extends beyond these physical limitations to include many other personal characteristics, including age, sex, religion, and all other enumerated grounds within the Human Rights Code. The fire sector in Canada has blazed trails in many areas of human rights, including mandatory retirement and bona fide occupational qualifications. We will explore these important topics in future articles on the fire sector.
© 2002, Sean McGee, Partner, Nelligan O'Brien Payne LLP. This article was also co-written by Bill Cole.
1 One author recalls a situation where a fire department administration was making efforts to accommodate a fire fighter who had become a quadriplegic in a skiing accident. The department was prepared to access provincial and federal funding to build an elevator at the training centre, to create an environmentally controlled office, and finally to purchase a state-of-the-art computer. Unfortunately the fire fighter was unable to regulate his health to the point where he could work.