September 14, 2014

Author: Joseph Oppenheim

Managing Disabled Employees

These materials were originally presented at the Lorman Employment Law Seminar on April 15, 2014.

Overview

The importance of human rights legislation in employment of disabled people

Common law rights of employers are restricted by human rights legislation. The Alberta Human Rights Act prohibits certain discriminatory employment practices that are otherwise permitted under the general laws of contract. Because disabled persons are a protected class, businesses cannot utilize employment practices that discriminate against them.

The philosophy underlying Canadian Human Rights legislation was summarized by the Supreme Court of Canada in Zurich Insurance Co. v. Ontario (Human Rights Commission) [1992] 2 S.C.R. 321 at p.339:

Human rights legislation is amongst the most pre-eminent category of legislation. It has been described as having a “special nature, not quite constitutional but certainly more than ordinary” … One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed.

A.  RETURNING TO WORK: duty to accommodate employees with disabilities

1. The legal framework

One of the purposes of human rights legislation in the employment context is to promote the reasonable participation of disabled individuals through the elimination of the discriminatory effects of workplace standards. Section 7 of the Alberta Human Rights Act prohibits employment practices that have a discriminatory effect on account of an employee’s physical or mental disability. The express exception to this is where such practices (specifically limitations, refusals, specifications or preferences) are based on “bona fide occupational requirements” or “BFORs”

Where an employment practice is discriminatory on its face, the employer bears the onus to demonstrate that it is a BFOR. The test that the employer must meet is that:[1]

1. it adopted the standard for a purpose rationally connected to the performance of the job (e.g. promoting the safe and efficient performance of work);
2. it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose;[2] and
3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose – that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.[3]

Courts have interpreted this to mean that employers need to develop standards that accommodate the potential contributions of all employees in so far as this can be done without undue hardship to the employer. If a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be a BFOR. Thus, a rule or standard must accommodate individual differences to the point of undue hardship if it is to be found reasonably necessary.

 In practice, this means that employers are required to modify and sometimes dispense with their workplace standards in order to accommodate disabled employees.

2. What is a “disability”?

Section 44 of the Alberta Human Rights Act defines physical disability and mental disability broadly:

“mental disability” means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder.

“physical disability” means any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes epilepsy, paralysis, amputation, lack of physical co‑ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, and physical reliance on a guide dog, service dog, wheelchair or other remedial appliance or device.

While these definition could encompass an infinite number of illnesses or conditions, it has been held that “only disabilities which affect or are perceived to affect a person’s ability to carry out life’s important functions, including specific aspects of a job position will be found to be a disability.”[4] However, the breadth of these definitions should not be understated. These definitions of disability have been found to encompass alcoholism, bipolar disorder, depression, PTSD, agoraphobia, frontal lobe brain damage tied to head injury, fractured ankle, back injuries, lupus, MS, and repetitive strain injuries in the arm, hand or elbow.

3. How can the duty to accommodate be discharged?

For the reasons that follow, it is important that organizations put an accommodation protocol in place and keep good records.

A maxim that often comes to mind in the context of employment law is “no good deed goes unpunished.” Discharging the duty to accommodate can difficult and onerous. In many instances, the employee is eventually fired (sometimes after months or even years of accommodation) and brings a discrimination complaint before the Human Rights Commission.[5]

In the leading case of British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 (commonly referred to as “Meiorin”), the Supreme Court of Canada stated:

… it may often be useful as a practical matter to consider separately, first, the procedure, if any, which was adopted to assess theissueof accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard …

The Alberta Human Rights Commission has interpreted this to mean that the duty to accommodate involves both procedural and substantive obligations.[6] The procedural obligation has recently been described as:[7]

… obtaining all relevant information about the employee’s disability, at least where it is available. This could include information about the employee’s current medical condition, ability to perform job duties, prognosis for recovery and capabilities for alternative work. The obligation to accommodate to the point of “undue hardship” requires employers to seriously consider how employees can be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken, constitutes failure to satisfy the “procedural” duty to accommodate.

In addition, management needs to be aware that employers bear the evidentiary burden to demonstrate that they have met the duty to accommodate. It is also relevant whether employees act reasonably in rejecting a proposed accommodation. It is important that not only do that employers make bona fide effort to accommodate, but that accurate records are kept of such effort and of the employee’s participation in the plan. As such, I recommend that employers develop a return-to-work plan together with the employee and, if needed, involve other stakeholders. It may be helpful to have a protocol in place for implementing return-to-work plans for disabled employees. This protocol should have the following elements as possible:

• Well in advance of the employee returning to work, communicate with the employee about what his or her functional capacities. Take factual notes during all discussions related to the return to work plan and include such notes in the employee’s case file.
• Ensure that there is appropriate medical information available to support the return to work, outlining the employee’s abilities, functional limitations and restrictions, if applicable.[8] This will help to ensure that the employee is in fact ready for a safe and timely return to work, i.e., that there is minimal risk to the employee or others.
• Undertake a job task analysis, if needed, and actively involve the employee in the analysis and evaluation. This analysis normally involves assessing the physical job duties, but it may also include psychological considerations such as communication, exposure to conflict, and the nature of the employee’s contact with others.
• Conduct additional medical assessment, if needed and justified. This is done by the employee’s treating physician. If there is a need to know more about physical limitations, additional expertise may be required.
• Incorporate an integrated team approach in the return-to-work process. At meetings, collaborate with the employee and other stakeholders (e.g., Human Resources, medical practitioners, the workers’ compensation board or insurers).
• Meet with the employee at a time and place that is convenient for him or her, in person or over the phone and discuss:
  • Discuss potential workplace barriers, where applicable, to ensure that they have been identified, addressed and mitigated where possible.
  •  Identify supports for rehabilitation. These may include retraining or modified or graduated work.
• Based on the medical information provided, determine whether the employee will require a short-term, temporary accommodation or a longer-term or permanent accommodation, in which case an analysis of the employee’s substantive position is required. Keep an open mind when considering the various approaches to accommodating the employee. If no single solution is obvious, explore the possibility of using a combination of options.
•  Implement the accommodation plan. If any adaptive technology or technical aids are required, contact your organization’s adaptive technology program, where available, for the procurement and installation of such equipment in advance of the employee’s start or return-to-work date. If applicable, ensure that the appropriate training for new equipment is made available.
• Discuss with your team any accommodation that will affect them and their workload, as appropriate, ensuring that you maintain the employee’s right to privacy.
•  Follow up with the employee regularly to carefully monitor progress.
• Reassess and adjust the return-to-work plan, as needed. Review information available from previous medical assessments regarding the employee’s abilities, functional limitations and restrictions to determine whether it is sufficient to support accommodation or if further information or clarification is required. As much as possible, the employee’s treating medical practitioner should be the primary source of information. When the information available is not sufficient to support the return-to-work plan, proceed with a medical assessment.
• If appropriate, have the employee resume normal duties once the employee has recovered from the injury, illness or medical condition, in a safe and timely manner.

B. What constitutes undue hardship?

The Supreme Court of Canada has stated that the duty to accommodate does not require sacrificing a legitimate goal (such as lowering a safety standard). It requires accommodation insofar as this does not result in the abandonment of the legitimate goal or undue hardship.[9] In the case of Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43 (commonly referred to as “Hydro Quebec”), the Supreme Court of Canada clarified the test for what constitutes undue hardship.

The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. … The test for undue hardship is not total unfitness for work in the foreseeable future.  If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test.  The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

In other words, employers must be patient. As long as the employee is shows signs that he will be able to fulfill the basic obligations associated with the employment relationship in the foreseeable future, the employer should be willing to stick it out.

The employer bears the onus to demonstrate that it cannot accommodate a disabled employee without experiencing undue hardship.[10] It is assessed on a case by case basis and numerous factors are considered, including (but not limited to):[11]

• financial cost, wherein the assessment is influences by the size of the employer’s operation;
• disruption of a collective agreement;
• problems with the morale of other employees;
• interchangeability of work force and facilities, the assessment of which may be influenced by the size of the employer’s operation; and
• safety risk, including the magnitude of the risk and the identity of those who bear it.

The Supreme Court noted that this list is not exhaustive. The purpose is to balance the interests of the employer with the right of the employee to be free from discrimination. The factors considered will necessarily vary from case to case, but most tribunals and arbitrators have characterized the standard as onerous. The employer’s duty has been characterized as one to take “substantial or meaningful steps to accommodate the requirements of the [employee].”[12] In essence, the employer is obligated to take meaningful steps to accommodate disabled employees, but not beyond what is reasonable.

 An important issue is timing. How long must an employer put up with hardship before it becomes “undue”? The Supreme Court has given us some guidance on this point:

A decision to dismiss an employee because the employee will be unable to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation.  … neither the employer nor the employee may disregard the past in assessing undue hardship.

To illustrate how these standards are applied by the Human Rights Commission, consider the case of Carriere v. Boonstra Trucking Ltd. In July 2007, Mark Carriere commenced employment with a small trucking company called Boonstra Trucking Ltd. (BTL). He was employed as a driver and delivery person. Their main client was an appliances wholesaler, and so the job required significant heavy lifting. In February 2009, Mr. Carriere had a slip and fall accident when getting out of his truck while on the job.  Mr. Carriere was off work and on WCB disability insurance until October 2009 (9 months).

In August and September 2009, WCB physicians deemed Mr. Carriere fit to return to work. However his own physician stated that he could return but only with modified duties. On October 9, 2009, Mr. Carriere met with BTL’s owner, who made it clear to him that he would need to work back up to the pre-accident level. They agreed on a plan to “ease” him back to work taking into account that he would need to build up his strength. The accommodation offered was that Mr. Carriere would start out working as the third man on deliveries (there were typically two), and he would gradually increase his participation in lifting the appliances until he was back to full strength. On October 13, 2009 he returned to work and the accommodation plan was put into place.

On October 15, Mr. Carriere was assessed by his physician who judged him to be capable of working at only a sedentary level, with no lifting and no bending. Mr. Carriere was provided with a form outlining these restrictions, which he gave to the owner. There was no discussion about it.

The next week, the owner was away and Mr. Carriere instead reported to an interim manager. Mr. Carriere was sent to do deliveries alongside an older employee. There was not a third employee assigned to the team. Mr. Carriere felt forced to do some of the heavy lifting. They were attempting to deliver a heavy appliance to the top floor of a home. Mr. Carriere phoned the manager and indicated that they needed help. The manager was notably irritated but came himself and assisted with the delivery.

On October 22, 2009 Mr. Carriere’s doctor referred him to the E.R. after he reported rectal bleeding and blurry vision, which he believed were caused by lifting heavy appliances. Mr. Carriere called BTL and advised them that he wouldn’t be coming in to work because he needed to go back to the hospital. The next day, he drove to work and was met by the manager, who advised him that he was unable to do the job and dismissed him summarily. BTL later claimed that Mr. Carriere had been fired for theft and drug use.

At the hearing before the Human Rights Tribunal, BTL argued that lifting heavy objects was a BFOR and given the size of its organization, it was an undue hardship to provide an extra employee on all deliveries. The Tribunal rejected this argument because BTL had attempted to accommodate Mr. Carrier but then seemed to simply abandon it. The Tribunal held that BTL should have provided adequate help on a more consistent basis prior to the hospital visit, and afterward it should have made inquiries into how to accommodate the exacerbated injury.  Mr. Carriere was awarded $15,000 in non-pecuniary damages and six weeks’ pay.

It is noteworthy that the employer was a small organization and the job clearly required heavy lifting. In my opinion, BTL would have been more likely to succeed if it had met the procedural obligation to conduct an accommodation assessment and then taken the position that they could not let Mr. Carriere work until he was able to do so. However, because an attempt at accommodation had been made initially (the manner in which Mr. Carriere dismissed likely did not help) this had the effect of negating the “undue hardship” argument.

C. FAKING SICK

1. Employee’s blatant dishonesty.

In the rare case that an employer catches the employee lying about illness to take a day off, Courts have held that summary dismissal with cause is justified. The case of Telus Communications Inc. v. Telecommunications Workers’ Union, 2013 ABQB 355 is illustrative. Jarrod Underwood, a service technician with TELUS, phoned his manager and said he was sick in order to have the day off to play in a softball tournament. The manager suspected that he was lying (Underwood had asked him for permission the day before and was denied). The manager went to the tournament and observed Underwood pitching from the mound. He did not confront Underwood at that time.

The following day, the manager confronted Mr. Underwood. He admitted that he was well enough to attend the softball tournament, but said that he was only watching, not playing. When confronted with the manager’s eyewitness account of him pitching from the mound, he changed his story and said that he only pitched, but did not bat. TELUS dismissed him for cause as Mr. Underwood had irreparably destroyed TELUS’ trust.

The Court upheld the dismissal and noted that abusing sick leave and persistent dishonesty are among the most serious workplace offences. Moreover, lying and continuing to lie when confronted will often justify summary dismissal in itself.

2. Illegitimate use of “stress leave”.

The more common circumstance is where an employee successfully obtains a doctor’s note confirming they need time off for stress leave. Doctors tend to oblige a patient’s request for such a note since they assume the patient is telling the truth. Such notes are often vague and simply state the employee will be off work for a period of time due to stress.

The challenge is that the law makes it difficult to determine whether the absence is legitimate. As noted above, employers have only a limited ability to question the legitimacy of a doctor’s note. An employer is not permitted to, in response to a demand for stress leave, ask for the employee’s diagnosis, as this infringes on the employee’s privacy rights.

However, what an employer can do is request some information about a sick-leave request, including what the prognosis for a full recovery is, the length of time needed for a full recovery, whether the employee will be under any medication when he or she returns to work, whether there will be any requirement for a graduated return to work and what impact, if any, the illness will have on the employee’s abilities to return to work and fully perform their duties. In some circumstances, an employer may have the right to demand an independent medical examination. In Peace Country Health v United Nurses of Alberta, 2007 CanLII 80624 (AB GAA), the arbitration panel noted the following guidelines:

… employers are entitled to seek medical information to ensure that a returning employee is able to return to work safely and poses no hazard to others. The employee’s initial obligation is to present some brief information from the doctor declaring the employee is fit to return.  If the employer has reasonable grounds on which to believe that the employee’s medical condition presents a danger to herself or others, the employer may ask for additional information to allay the specific fears which exist, explaining the reasons to the employee.  The request must be related to the reasons for absence; no broad inquiry as to health is allowed. … A psychiatric or psychological examination is a highly intrusive and sensitive procedure and should only be available to employers in cases where the necessity for it has been firmly established. … less intrusive measures should be adopted if they were available and the employer acted unreasonably in insisting on a psychiatric examination without first exploring less intrusive options.

I recommend that employers limit entitlement to sick-leave benefits. There should be a policy in place whereby additional medical information is required to verify certain absence requests, such as a request for stress leave. For example, an employer might require that, as a condition to getting benefits, a doctor certifies a medically recognized disability. Stress, in and of itself, normally will not qualify, although it may be a symptom of a recognized illness. These requirements should be in place prior to the employee making the request for sick-leave benefits and should be applicable to all employees.

Conclusion

This area of employment law is constantly evolving, and is not always intuitive. Hopefully these materials provide some helpful guidelines in assessing how to handle return-to-work issues.

¹ British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union [1999] 3 S.C.R. 3 (commonly referred to as “Meiorin”) at para 54.

² This is a low threshold. Absent a suggestion in the evidence that the standard was not adopted in good faith, it will likely be presumed to have been satisfied. See Grismer, infra.

³ This is the “undue hardship” part of the test that is discussed in some detail below.

⁴ Capital Health Authority v. United Nurses of Alberta, Local 33, 2006 CanLII 80558 (AB GAA)

⁵ For example, see Lagana v. Saputo Dairy Products, 2012 HRTO 1455 (CanLII). Employers often choose to terminate the employment relationship without cause and offer to pay a generous severance in exchange for a release rather than attempt to accommodate disabled employees to avoid these types of challenges.

⁶ For example, see Schulz v. Lethbridge Industries Limited, 2012 AHRC 3 at para 56 and Saunders v. Syncrude Canada Ltd., 2013 AHRC 11 at para 90; both are decisions of William D. McFetridge Q.C.

⁷ Saunders v. Syncrude Canada Ltd., supra, at para 90.

⁸ There are limits to what medical information can be requested by employers. The employer may require the following information if it needs to determine what accommodations are necessary: whether the illness or injury is permanent or temporary; what restrictions and limitations an employee has; and whether a treatment or medication the employee is taking will affect the employee’s ability to perform job duties. See Capital Health Authority (Royal Alexandra) v. United Nurses of Alberta, Local 33, supra, approved on judicial review: 2008 ABQB 126

⁹ British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) 1999 CanLII 646 (SCC) (commonly referred to as “Grismer”)

¹⁰ Meiorin, supra, at para 72.

¹¹ Central Alberta Dairy Pool v. Alberta (HRC), [1990] 2 S.C.R. 489, at p.520.

¹² Gohm v. Domtar Inc. (No. 4) (1990), 12 C.H.R.R.D/161 (Ont. Bd. Inqu.), affirmed 16 C.H.R.R. D/479 (Ont. (Div. Ct.)).