A recent Alberta decision has reinforced that when it comes to employee preferences around accommodation, there are limits to an employer’s legal obligations.
“Most employers are willing to consider the wishes of an employee in the accommodation process,” says Leanne Walsh, an employment lawyer at West Coast Workplace Law in Vancouver. “But the employer’s legal obligations to accommodate an employee don’t require that the employee’s choice is central in that accommodation.”
Back injury in 2016
Mr. Alexey Ryabykin began working for Schlumberger Canada in 2013. He moved on to various roles with the London, Ont.-based oilfield services company that involved duties such as attending at oil rigs, taking surveys, and verifying data collection at remote worksites in Alberta. His employment was physically labour-intensive and the number of days he worked varied each month, so he was paid a base salary plus bonuses for days he performed work.
In November 2016, Ryabykin injured his lower back, which restricted his ability to work. Schlumberger provided modified work when it was able to, including an assignment in the U.S. This assignment had a time limit due to U.S. immigration laws, so he had to return in May 2018.
Ryabykin’s medical restrictions prevented him from performing most of the manual labour that was part of his regular job. The company tried to find him alternative work, but an economic downturn in the oil industry meant that there wasn’t anything available. Half of the company’s field staff also weren’t on work assignments.
Ryabykin asked about opportunities for office roles that he felt he could do well, but Schlumberger didn’t think they were appropriate. The company hired others for the positions while he remained at home receiving base salary pay but no additional work bonus.
Ryabykin was enrolled in an online training program required by the company, but he refused to complete it. He also didn’t co-operate with Schlumberger’s IT department to address issues with his computer.
In October, the company offered him a temporary assignment in an office. It said it needed to know by Oct. 22 if he wanted the offered assignment, but in the evening of Oct. 21, Ryabykin asked for more clarity on the project. He didn’t get the assignment.
Medical restrictions
Later that month, a medical assessment indicated that Ryabykin had more temporary medical restrictions but he was capable of performing the office role. Schlumberger offered him the office assignment again, but Ryabykin didn’t respond. This was problematic for his claim, as employees are required to participate in the accommodation process, says Walsh.
“The employee has specific obligations to be open and flexible, respecting which positions into which they can be accommodated. As we saw in this case, refusing work positions that were reasonable accommodations put forward by the employer did not assist the employee in his claim for discrimination.”
In December, the Alberta Workers’ Compensation Board (WCB) approved Ryabykin for job search assistance and told Schlumberger that it should stop paying his base salary. He remained a Schlumberger employee and the WCB paid him benefits for his ongoing and permanent injury.
Ryabykin filed a human rights complaint, alleging that Schlumberger discriminated against him on the grounds of physical disability by failing to accommodate him.
An Ontario municipality didn’t have to accommodate a pregnant firefighter in her regular position, according to an arbitrator.
Employer’s offers reasonable
A human rights officer found that Schlumberger had informed Ryabykin that the decline in available work along with Ryabykin’s medical restrictions would make it difficult to find work for him. However, the company did offer him work that fit within his restrictions and he declined twice. Schlumberger met its duty to accommodate, the officer found.
“[Ryabykin] was offered several positions and refused those conditions based on personal choice, or simply delayed replying within a reasonable timeframe to offers that the employer tabled,” says Walsh. “The employer had legitimate business reasons to move on to other employees to offer those positions.”
Ryabykin appealed the officer’s decision, arguing that there were several roles he could have performed that were given to others. He also said that the company didn’t adequately consider his skills and qualifications.
The Alberta Human Rights Tribunal found that Ryabykin wasn’t treated any differently than another employees receiving base pay while waiting for opportunities to work at various worksites. In addition, Ryabykin’s actions after the October 2018 assignment offer indicated that he wasn’t interested, the tribunal said.
The tribunal noted that Schlumberger found temporary assignments for Ryabykin that met his restrictions, so it didn’t matter if other alternative roles could have been suggested because “accommodation does not have to be perfect or the [employee’s] preferred accommodation.” Ryabykin’s refusal of the reasonable offers was a failure to live up to his part in the accommodation process, says Walsh.
“This is interesting, because not only the employer, but the employee as well as their union, if there is one, has obligations in the accommodation process. So once the accommodation process is triggered by the employee requesting the accommodation, all parties have a responsibility to try to make that accommodation process be successful through actively participating.”
Disability accommodation must be reasonable, not perfect, according to an early decision from the B.C. Human Rights Tribunal.
The Alberta tribunal determined that Schlumberger met its duty to accommodate and did not discriminate against Ryabykin. What employers should take away from this decision is the importance of having updated human rights and accommodation policies and proper training on how to follow them, says Walsh.
“I can’t emphasize enough the value of training employees and leaders on human rights and the accommodation process. A failure by an employer to accommodate an employee has more than legal consequences — it can have an impact on workplace culture and employee retention. It brings clarity around obligations and expectations. In the accommodation process, it creates confidence in the process, and it allows everyone to work collaboratively.”
