OPP Demonstrate Pitfalls in Mismanaging Accommodated Return to Work

A recent decision of a labour arbitrator reflects how things can go wrong when an employer (and its HR representatives) don't take adequate steps in managing the return to work of an employee with mental health concerns.

In Ontario Provincial Police Association and Ontario Provincial Police, Arbitrator Abramsky was called upon to consider several individual grievances, as well as an Association grievance, related to how one of the Association's members was accommodated. The affected employee (referred to as "X" throughout the decision), started working for the OPP in 1995, and by 2011 was a member of the Barrie Enforcement Team ("BET") of the Highway Safety Division. She was a trained intoxilyzer technician, and was part of the team responsible for ensuring road safety on highways around Barrie, Ontario. In late 2011, X began to work a considerable number of unscheduled and unpaid hours, patrolling the roads in her off hours. She had experienced a marital breakdown a few years earlier, and complained to others of being lonely. In December 2011, tensions with her co-workers (related to her inflated ticketing/arrest numbers, as well as a conflict with a co-worker about the conduct of a holiday RIDE program) boiled over at a meeting intended to work out the problems. X became very upset and, prior to storming out of the room, made a comment like 'maybe I should eat my gun'. Afterward, one of the Sergeants issued an email prohibiting working outside of scheduled time and precluding staff from taking cruisers home at the end of shift, which X felt targeted her personally. In January 2012, she went on light duties due to knee problems, but also appeared at the local emergency room due to suicidal thoughts. She was diagnosed with a major depressive disorder.

Over the next 3 years, X's condition deteriorated, with several suicide attempts. More than once she was taken to hospital by police, raising concerns under the Mental Health Act. Attempts were made to return her to work, but X's condition did not stabilize sufficiently. Instead, she began to send unwelcome email messages to a Sergeant with whom she worked, professing her feelings for him. This continued until the other employee filed a Workplace Harassment and Discrimination Policy complaint with the employer. Often after X would receive unwelcome news (about a return to work, for example), her mood would worsen and there would be another suicide attempt. An 8-week residential program at Homewood Health Centre provided some improvement, but she again attempted suicide on her last day at the facility. By June 2013, X's psychiatrist was of the view that she was "sufficiently stable" to consider a return to work. However, only a few days later, she contacted a crisis line about her suicidal thoughts and was brought to the emergency room by OPP officers.

In response, the employer sent a letter to her psychiatrist asking a number of questions about X's ability to resume her duties as a police officer, bearing in mind the safety of X, her co-workers and the public. In clearing her to return to work in early July, her doctor recommended that she be assigned administrative work to start with, and that she "avoid firearms for now", as well as exposure to "emotional and confrontational situations". He also indicated that she was not yet fit to participate in use of force training, though her prognosis for being able to fully participate in the workforce was "good". After prompting from the employer, her psychiatrist clarified that he was also concerned about her being around other officers with firearms, suggesting a return to a location with "as few firearms around her as possible". By mid-August, the OPP learned that X had again shared with a friend that she was having suicidal thoughts. The employer shared further background information with the doctor, including its concerns about X's stability, but in September 2013, the psychiatrist again wrote to the employer advising of his opinion that she was medically fit to return to work. In October 2013, the psychiatrist diagnosed X as also having Borderline Personality Disorder. She was admitted to hospital several more times in the last 3 months of 2013 due to depression and suicidal thoughts, including one occasion within a week of her doctor's letter in September clearing her for a return to work. Although the psychiatrist persisted in stating in a February 2014 letter that X was well enough to resume working, she was asked to undergo an independent medical examination ("IME") in March 2014 because the OPP had lost faith in the advice of her doctor.

Having conducted a comprehensive review of her file (including records of her multiple hospitalizations) and an extensive interview with X in person, Dr. Siu confirmed the diagnosis of depression and Borderline Personality Disorder, but found that these conditions did not preclude a return to work. That being said, he made extensive recommendations about the supports that would need to be put in place to facilitate a successful reintegration:

• A graduated return to front-line policing duties, with the initial assignment of administrative duties on a part-time basis, increasing to full-time hours after two weeks;
• Consent of X to allow her various treatment providers to communicate with one another;
• Implementation of a safety plan so that co-workers and supervisors can share concerns about her progress or any troubling behaviour, or the appointment of a designated contact person to gather and identify concerns about 'decompensation' (deterioration of her mental state) or her ability to safely perform her job; and
• X to arrange a psychologist for ongoing follow-up and treatment for the next 12 months.

Under the OPP's internal policies and procedures, individuals who required workplace accommodation were to be provided with an individualized accommodation plan, which was to be updated regularly to address any changes.

In the fall of 2014, there was very little discussion among managers and supervisors at the OPP about the necessary measures to reintegrate X in the workplace. At one point, a Superintendent was alleged to have told front line supervision that they were to "make it work" and that if any of the staff at BET (where X would be returning ultimately) had a problem with the accommodation, they should submit their transfer request along with any complaints. No accommodation plan, aside from scheduling of the return to work and some refresher training, was ever put in place. The employer did not create a safety plan or a mechanism for co-workers and supervisors to report concerns to management and X's treating healthcare practitioners. Although X did arrange some additional psychological counselling, under the terms of the Great West Life benefits plan, this support was limited to 6 sessions which ended on August 18, 2014. In October 2014, X reached out to the psychologist again, because she was in crisis (having again attempted suicide by ingesting a large number of pills). Despite the fact that the employer was aware of a "crisis-related" visit to the psychologist in October, a note from her psychiatrist in November 2014 suggested that she could still go back to work. Instead of delving deeper into her condition, X was simply scheduled for a graduated return to work in December, with "Block" training in January 2015 (which would include use of force training). More than one individual, including the Sgt. who would be supervising her return to work, expressed concerns that she still harboured concerns about her former colleagues at BET being against her. No meetings were held among management and supervisors to address these concerns, however, even though X had specifically requested one.

Although X seemed to be dealing with her return to work initially, after only a short time, it became apparent that she was struggling. During the firearm component of Block training, she became very upset when the slide of her gun struck her in the face, and had to be allowed to complete training after hours. She was frequently seen crying, and was experiencing alienation and symptoms of depression by February 2015. Other staff testified that they were "on eggshells" around X because they weren't sure what they could and could not say in her presence. Moreover, there was a pervasive feeling among staff and supervision that management did not want to hear concerns about X or her psychological condition. She made some troubling posts on Facebook suggesting that she still blamed her colleagues at BET for her mental health issues. X began using a significant amount of sick time, or opted to work out of another office rather than attending work at BET. She had a very emotional reaction to a negative interaction with a member of the public. Her supervising Sgt. repeatedly brought these issues to the attention of managers and HR, but he was not provided with any guidance on how to address the problem.

On March 21, 2015, X got into an altercation in the workplace with another Constable. X had arrested a woman on suspicion of drunk driving, while she had two children in her custody. The woman and her children were brought to the Barrie detachment, ostensibly so that the mother could be given an Intoxilyzer test. However, the Intoxilyzer technician refused to offer the test after X revealed that she had not made any notes or recorded a scoring sheet for the Standardized Field Sobriety Test ("SFST") which she claimed the motorist had failed. Others who observed the suspect did not identify any smell of alcohol on her breath or person or any signs of impairment, which X had also observed. After an aggressive and loud confrontation, ultimately the motorist was given the Intoxilyzer and provided a breath sample with zero concentration of alcohol. She was released from custody (along with her children, for whom the Children's Aid Society had been called) without charge. According to witnesses, X was unreasonable, aggressive and demanding. X complained to her supervisor that the other Constable had "undermined" her and interfered in her investigation, and the next day she sent an extensive email to a number of supervisory and managerial officers. Unfortunately, she left a copy of the email on the printer where a number of her BET colleagues read it and her comments suggesting that she still had resentment toward them as the 'cause' of her illness. The other Constable filed an internal complaint to the Professional Standards Bureau ("PSB") regarding X's behaviour. Ultimately, she also made a cross-complaint against the other officer. The two officers were interviewed by the PSB on July 22, 2015. The PSB dismissed X's complaint, but found that there were reasonable grounds to believe that she had been neglectful in her discharge of duty by failing to properly investigate the impaired driving incident.

Between March and July 2015, there were signs that X's condition was deteriorating, but at the same time, her co-workers were also experiencing anxiety, both for X and for their own personal health and safety. A number of constables sent letters to management asking that something be done to ensure their safety in the workplace, citing concerning incidents or events involving X. The response from management did not provide any assurances that these issues were being dealt with. Referring to 'privacy' concerns, the other officers were not given any sense of what, if any, steps were being taken. At the same time, supervision's requests for advice from HR went unheeded. On March 31, 2015, it had been decided that X's doctor should be provided with a new Health Information Form to get an updated assessment of her ability to safely perform the job. An initial draft of that form did not include any of the episodes that had created concern about X's mental state. By late July, HR had still not supplied the supervisor with an adequate form to send to X's psychiatrist.

Unbeknownst to the employer, in July 2015, X was again experiencing suicidal ideation, and had attended hospital. She advised the OPP that her doctor was recommending a transfer out of BET within the next six months, but no further evidence of her condition was provided at that time. Supervision were told that they would need to await completion of the Health Information Form before any steps could be taken. However, at the same time, HR recommended removing X's use of force clearance, and she was to be reassigned to administrative duties in another office. She strongly objected to this move. On July 22 (the same day as her PSB interview), she was told that the OPP would need a note saying that she perform resume administrative duties at the Provincial Traffic Operations office, and she would then need the Health Information Form completed in order to assess her fitness for full policing duties.

On July 24, 2015, X presented a member of management with a letter from her doctor, clearing her to perform "her duties as a front-line police officer and/or administrative duties for the next few months", with a transfer out of Barrie within the next few months.

She missed work on July 27, 2015 due to feeling stressed about the outcome of her PSB interview. By August 2, 2015, she was off work, and her supervisor had yet to receive the Health Information Form that her doctor would need to complete.

On August 2, 2015, X went into the BET office and overdosed on phenobarbitol in an effort to kill herself (after she realized that she could no longer access a firearm, which had been removed from her gun locker). She was found by a co-worker, and was rushed to hospital where she remained for over a month. She had sent a suicide note by email to one S/Sgt., and had also left a suicide note in her supervisor's desk drawer.

In the aftermath, the prevailing sentiment was "I told you so". Staff and supervisors were angry and disappointed that despite their repeated attempts to get some action from management, things had ended badly. In the result, the Association filed grievances on behalf of 4 Constables, alleging the OPP had failed to meet its various responsibilities under the collective agreement, its internal policies and procedures, and the Human Rights Code (the "Code") and the Occupational Health and Safety Act (the "OHSA"). It also filed an Association grievance, alleging a failure in the accommodation process mandated by the collective agreement.

The grievances also alleged that the employer had taken or threatened reprisals with respect to the allegation that a superintendent had said that any officer who complained should also put in a transfer request, but these allegations were dismissed (based primarily on the finding that there was no actual threat).

For employers, the most important findings relate to the claims that the OPP did not properly manage the accommodation process, thereby placing the health and safety of officers (including X) in jeopardy. In the arbitrator's view, very little criticism could be levelled at the employer's efforts to address and accommodate X's medical condition up to the point of the IME report. However, after Dr. Siu (who performed and reported on the IME) completed his work and made recommendations for X's accommodation, things started to go down hill. With respect to the absence of a safety plan, the Arbitrator found (at para. 246):

This was not done. The evidence clearly establishes that this failure, more than anything else, led to what occurred to X and, as a consequence, the individual Grievors and Constable Antaya. All that occurred in regard to X’s return to work, from the fall of 2014 to August 2, 2015, would likely have been avoided if this safety plan had been put into place. It would have provided, as Dr. Siu suggested, a framework for all parties involved to become alerted to a potential relapse. Even though it was “imperative” that X have this safety plan in place, no such plan (or any semblance of one) was adopted. 

The Arbitrator then went on to state (at para. 249):

Although there is no specific legal obligation to follow the recommendations contained in an IME, the OPP failed to explain its decision to ignore them. It asserts that, instead, it properly followed Dr. Z’s December 8, 2014, assessment that he had no concerns about X’s return to full duties and that she was “psychologically fit to perform the full duties of a Police Constable.” With respect, that assertion ignores the OPP`s own prior concerns about the validity of Dr. Z’s assessments – the reason why it sought an IME from Dr. Siu. The OPP did not trust Dr. Z’s conclusions concerning X’s ability to return to work because he repeatedly cleared her to return to work and shortly thereafter, she tried to commit suicide. They did not trust Dr. Z’s conclusions for very valid reasons. It also ignores the very real issues that arose about X’s mental health in the Fall of 2014 at work, and the crisis that she had in October 2014 when she sought out Dr. Anderson. Under the specific facts and circumstances in this case, I am unable to conclude that the OPP`s reliance on Dr. Z’s December 8, 2014 assessment was reasonable.

These failures, both of management and HR, in meeting their obligations as set out in internal policies and procedures, as well as under the Code, did not just impact X, however. At para. 264, the Arbitrator found:

The evidence is compelling that these accommodation failures in regard to X caused stress for the BET team. They had concerns – mixed feelings and skepticism – about X’s return to BET. There were rumours from staff at PTO that X blamed her co-workers at BET for her illness, and felt that she had been treated poorly by them. Yet without the required training, and in the absence of a real opportunity to discuss these concerns, her co-workers were left unprepared for X’s return to full patrol duties. No advice was provided concerning mental health issues, what behaviour to watch out for, or a mechanism to convey concerns. No training was provided. They were left on their own, with a supervisor who also had no experience or training in this area. 

While the decision does recognize the inherent difficulty in such a situation, and the tension between discharging obligations to a disabled employee while ensuring the safety of co-workers (without acting on "stereotypical attitudes "inconsistent with human rights), it also demonstrates how this employer clearly failed in respect to the latter half of that equation. By seeming to apply the same standard for intervention as would apply under the Mental Health Act (i.e., whether X posed an "imminent danger to self or others"), the OPP set the bar too high for taking action to address the concerns of other employees. The Arbitrator felt that the other employees at BET had legitimate reason to be concerned, not only for X's safety but for their own, as well. As the Arbitrator concluded at para. 276:

In my view, just as the OPP was properly concerned about X’s access to firearms, X’s co-workers were also legitimately concerned about it, especially as they saw her mental health deteriorating. The presence of firearms creates safety issues that simply do not exist in an office setting. Although other workplaces may have tools, including vehicles, that could be used as a weapon, the ready presence of firearms changes the situation, and requires the OPP to consider this issue as a potential health and safety issue, as it clearly did in its correspondence to X’s doctors. 

When X's co-workers became more vocal, framing their concerns as 'workplace health and safety', the employer had an obligation to commence making enquiries to understand whether her access to firearms might pose an actual threat. This they simply did not do. Moreover, the failure to put in place a safety plan (as recommended) meant that there was no effective means of communicating with X's treating professionals when concerns came to light.

In the result, the Arbitrator concluded that the OPP had failed to take all reasonable precautions to protect workers from a potential workplace hazard, in violation of its obligations under the OHSA and the collective agreement.

Although none of the grievors could establish that the failures of the employer had resulted in a diagnosed medical condition, the Arbitrator found that this was not a requirement to order a remedy. The four individual grievors were awarded $5,000 each, with one constable being eligible for further remedies to be decided by agreement of the parties based on his specific situation (i.e, he was the officer who had been involved in the PSB complaint against X and held himself to blame for her subsequent suicide attempt). On its own behalf, the Association was awarded various 'public interest remedies' designed to prevent a recurrence of the situation. The other members of the BET were also awarded $5,000 or $7,500 each for the violation of their rights under the collective agreement and the OHSA.

As stated by the Arbitrator, the case does not stand for the proposition that the recommendations emanating from an IME must always be implemented. However, where an employer goes to the trouble of requesting an independent assessment of an employee with serious mental health issues, any suggested follow-up should be carefully reviewed. If an employer will not be implementing measures meant to accommodate the employee, while providing safeguards for other staff, why not? Being able to explain why the IME recommendations cannot be put in place may be critical in defending a subsequent claim that the employer has failed the accommodated employee or others in the workplace who may be put at risk by the lack of precautions.

Is your organization struggling with a complex accommodation issue? Need guidance on how to balance the rights of disabled employees and their co-workers? Contact [email protected] for expert assistance.

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Operating as Ceaser Work Counsel since early 2014, Lance Ceaser is a 15+ year management-side labour and employment lawyer operating from London, Ontario, where he resides with his lovely spouse, a dog and 2 cats. Lance has provided timely, cost-effective advice to organizations of all sizes in virtually every sector of industry and the public sector throughout his career.