An arbitrator in Manitoba has rejected a union’s claim that Shared Health failed in its duty to accommodate a pregnant paramedic’s medical restrictions.
Arbitrator Kristin L. Gibson dismissed the grievance brought forward by the Manitoba Association of Health Care Professionals (MAHCP), finding that Shared Health made “reasonable” efforts to identify suitable duties for a pregnant primary care paramedic who required “light duties” during her pregnancy.
What happened
The grievance, filed on Nov. 14, 2022, centred on a paramedic — the “grievor” — who worked in Roblin, Man. She had presented a medical note dated Oct. 27, 2022 requesting “light duties,” after a hospitalization at the end of her first trimester.
The grievor had ongoing lifting restrictions and sought accommodation while she continued working up until her maternity leave, which was set to start in April 2023. The union alleged a “failure to reasonably accommodate” between the date the note was provided and Nov. 25, 2022, when the grievor was ultimately assigned to “project work.”
The parties involved were operating under a centralized collective agreement between MAHCP and Shared Health Employers Organization. Both sides accepted that article 2906, the key provision in the agreement on reasonable accommodation, governed the process.
The article states that “reasonable accommodation is the shared responsibility” of employees, the employer and the union, and that where a need is identified, the parties will “investigate and identify the feasibility of accommodation” that is “substantial, meaningful and reasonable to the point of undue hardship.”
Medical note and ‘riding third’
According to the evidence, the grievor first emailed her district manager on Oct. 27, 2022 with her medical note. An initial meeting between union and employer representatives occurred on Nov. 2, 2022, but the original medical form lacked clarity on weight-carrying restrictions.
The employer said it needed “more information” on “lifting or carrying,” as these were core functions for a paramedic on an ambulance. A revised medical note dated November 3, 2022 spelled out that the grievor could not lift stretchers loaded with patients, but it left the “carrying” category incomplete.
At multiple meetings, the union proposed alternatives, including having the grievor “ride third” on an ambulance crew — an arrangement where a third paramedic is added above the normal two-person complement — or assigning her to duties such as restocking, cleaning, paperwork, or working in a personal care home. The employer rejected these suggestions.
Its representatives said that “riding third” was not standard practice unless it was for training, a final step in a graduated return to work, or orientation after a lengthy leave. The employer maintained that the grievor’s lifting and carrying capacities were unclear, and it declined to risk patient care or the grievor’s safety by trialling tasks that might exceed her restrictions.
The union argued that the employer’s refusal to consider “riding third” or reassigning her to a personal care home amounted to a failure of the duty to accommodate. It also raised a discrimination claim on the protected ground of sex, specifically pregnancy. In response, the employer noted that personal care homes fall under a different employer structure within the health system and that “the duty to accommodate did not extend beyond Shared Health.” Arbitrator Gibson agreed, writing that “there is no extension of the duty to accommodate beyond the entity bound by the collective agreement.”
On the issue of “riding third,” witnesses for the employer testified that this practice is limited to circumstances such as returning an employee to regular duties after a leave of absence or training new paramedics. They said the value in having a third paramedic was not to expand crew capacity but to validate the return of an employee who is ready to perform all required tasks. Allowing a paramedic who cannot lift to ride third for an extended period would, in their view, create “unproductive above-complement positions.” Gibson accepted the employer’s argument that these assignments should not be mere “make-work” tasks.
Employer should have sought medical clarification: Union
In support of its claim that the employer should have requested further medical clarification, the union cited a case where a functional capacity evaluation was used to clarify an employee’s restrictions. Gibson rejected the idea that the employer was obligated to do the same here, noting that the grievor and her health care practitioner had multiple opportunities to clarify her abilities but never indicated any improvement in lifting and carrying capacity.
The arbitrator wrote that “the onus is on the employee to provide clear and complete medical evidence.” The decision states that “the grievor and her Union knew that the Employer’s concerns … were centered on the lifting and carrying” requirements but that “none of the HCPA’s provided by the grievor indicated that she had any capacity to carry weight.”
Gibson also addressed the suggestion that the employer should have “trialled” a role with the ambulance team. The employer had refused to let the grievor “try out whether she could do the job” given the “potential risk” to her and to patients. The arbitrator supported this stance, citing the logic that it would be “imprudent and potentially unsafe” and would not be required by the duty to accommodate. “In my opinion the Employer had no obligation to do either in these circumstances,” Gibson wrote.
No evidence of differential treatment
The union’s discrimination argument rested on its claim that pregnant employees were treated differently than others with similar restrictions. However, the arbitrator found “no evidence supporting differential treatment of pregnant employees” and concluded that Shared Health applies the same approach to all employees presenting with restrictions. The employer’s witnesses consistently said that pregnancy does not alter how restrictions are accommodated and that the “root cause” of the restriction does not matter.
In the end, the arbitrator found that the employer had taken reasonable steps to identify suitable duties while respecting the known physical restrictions. The grievor was ultimately assigned to administrative project work less than a month after her initial request for light duties. While the union characterized the process as flawed, Gibson concluded that the law only requires “reasonable” accommodation efforts and that Shared Health’s actions did not amount to discrimination or a breach of the duty to accommodate.
“Overall, the Employer conceded in argument that the process of accommodation had not been ‘flawless’ … however, it was strongly suggested that authorities support that accommodation must only be reasonable in all of the circumstances. I agree with this characterization,” wrote Gibson.
“For all of these reasons, the grievance is dismissed,” the decision concluded.
For more information see Manitoba Association of Health Care Professionals v Shared Health, 2024 CanLII 122938 (MB LA).
