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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
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