SMS is pleased to present our new section of the LoGo Newsletter, Employer’s Corner. There are many ways employers and managers can prevent significant and costly claims by employees or former employees. I have practiced in the employment field for over 20 years and assisted a broad range of clients, including employers with over 500 employees, and some with as few as 2 employees. I have learned over the years that employers who are knowledgeable, able to identify possible issues and seek advice early save themselves significant time and money. In this area a little advice goes a long way.
This article will be the first of a 3 part series titled “The Disabled Employee”. The article applies primarily to employees outside of collective agreements, although the basic principles are the same in either case. The Human Rights Code applies to both unionized and non-unionized workplaces. However, in contrast to the non-union context, collective agreements will often contain specific provisions to deal with requests for medical information, disability, illness, the provision of medical certificates, release of medical information and accommodation.
Dealing with a disabled employee is one of the most challenging areas employers face. Failure to accommodate a disabled person may result in substantial damages against the employer arising from a human rights claim or wrongful dismissal. Employers and managers need to be fully cognizant of how to determine if an employee is disabled, when the duty to accommodate arises and what accommodation is required. In addition, it is important to understand the point at which an employer is entitled to say that the accommodation required is causing undue hardship and the employer no longer has the duty to accommodate.
Part 1 of this 3 part series will address the definition of disability as determined by human rights and court cases. It will also address what medical information you need to determine if someone is disabled, and what information you need to accommodate an employee who is disabled.
Part 2 of the series will address what accommodation is needed, what is too little, and where can you draw the line and say that the accommodation being required is causing undue hardship.
Part 3 will discuss how long an employee must be accommodated, in what manner, including alternative employment, and when an employer is entitled to terminate an employee who cannot do the work required. It will look at the various challenges and risks involved in these decisions.
Obviously, all that needs to be assessed and considered in the areas of employment and disability fills books, rather than articles. As such, these articles will provide an overview. It is recommended you seek detailed advice regarding specific situations as failing to do so can be costly.
The Disabled Employee
Definition of Disability and How to Determine if an Employee is Disabled
The BC Human Rights Code states:
Discrimination in employment
13 (1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment because of the physical or mental disability.
The Supreme Court of Canada, in Andrews v. Law Society of British Columbia,  1 S.C.R. 143, established that discrimination is a distinction or differential treatment, whether intentional or not, “based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others or which withholds or limits access to opportunities, benefits and advantages available to other members of society.” In a subsequent case, British Columbia (Public Service Employee Relations Commission) v. BCGEU,  3 S.C.R. 3, it determined that discrimination also includes treatment that has an adverse effect on the individual or group, even if such effect was inadvertent or unintentional.
Physical or mental disability is not defined within the Human Rights Code. The definition arises from cases before the Human Rights Tribunal and before the courts. Overall a mental or physical condition that prevents an employee from performing significant functions that most people can perform, or is ongoing as to opposed to temporary and cannot be controlled by the employee will likely be found to be a disability. However, the definition of disability is also said to include those who suffer no limitations as a result of medication or other means to control their physical or mental disability.
Conditions that have been accepted as a physical or mental disability have included epilepsy, diabetes, heart conditions, speech impediments, dyslexia, hypertension (high blood pressure), asthma, obesity, height, alcoholism or alcoholism in remission, drug dependency, AIDS, AIDS Related Complex, HIV-Positive, brain damage, depression and stress-related illnesses, actual physical disability with pregnancy, Chrohn’s Disease and thoracolumbar scoliosis (see Illness and Disability in the Workplace: How to Navigate Through the Legal Minefield by James A. D’Andrea). This list is not exhaustive.
It is also important to be aware that the definition of disability also includes in many cases perceived disabilities. The rationale for this is that perception often influences and may cause discriminatory behavior, and human rights legislation is aimed at preventing the effects of discriminatory behavior.
Suffice it to say that the definition of physical and mental disability is broad and tends to be fairly inclusive. Most situations an employer encounters will fit within what common sense would regard as a disability. It is important however to assess each case on an individual basis and seek advice if in doubt.
The next question is how to determine if the employee suffers from a physical or mental disability. This is a situation in which the right of an employee to privacy over their medical records and their treating physicians collides with the employer’s duty to accommodate a disability. However, an employer can request medical information in some circumstances. These include when an employer needs to determine if an employee is suffering from a disability, justification for an absence from work, the ability to safely return to work or accommodation is requested and/or the employer needs to determine what accommodation is required. An employer has a duty when an employee requests accommodation to “at the very least engage in an examination of the employee’s current medical condition, their prognosis for recovery and the employee’s capabilities for alternative work”, as held by the Canadian Human Rights Tribunal in the 1999 case Conte v. Rogers Cablesystems Ltd.
The employee, when requesting accommodation for a disability must, when requested, provide the employer with sufficient medical evidence of a disability to determine if the person has a disability and the accommodation required.
The employee is required to provide sufficient information to substantiate his or her disability, and what accommodation is required. This would include information regarding any physical or mental abilities and restrictions. An employer may be relieved of the duty to accommodate the employee if an employee, after being requested, has failed to provide information confirming the disability and limitations of the disability, so long as this failure is not the result of a mental disability.
In some cases an employer has been held liable for wrongful dismissal as they failed to adequately investigate the employee’s disability and requirements for accommodation. In Trick v. Federated Co-operatives Ltd., a 2005 decision of the Alberta Human Rights Tribunal, it was determined that an employer is required to follow up for missing medical information if thought necessary to assess an employee’s capability to return to work.
There is some controversy as to whether or not an employee must provide the employer with a specific diagnosis. Information sufficient to determine the nature of the illness or disability, the prognosis, expected time for return to work, if not currently working and their limitations may suffice. In some cases if the medical information is sufficient to enable the employer to determine the employee is disabled and what is required to accommodate them, a specific diagnosis may not be required.
When seeking medical information the employer should send a letter to the employee’s treating physician requesting sufficient information to determine if the employee has a disability, the prognosis and limitations and restrictions arising from that disability and accommodation needed. The physician should be aware of the employee’s position, their duties, obligations, usual physical requirements or any other information the physician ought to consider when providing their opinion on the accommodation necessary.
The employer should request the diagnosis, length of time the employee has suffered from such a condition, their prognosis for recovery and what the employee is capable of doing, not capable of doing, and any other accommodation being recommended. In addition, the employer should, if appropriate, request the anticipated time frame in which the employee can increase their duties.
In cases in which the employer has reasonable grounds to believe that the employee is not fit for work or to return to work then the employer may request that the employee undergo a medical examination by a physician designated by the employer. The employer must have reasonable grounds, such as some evidence contradicting the physician’s medical opinion, to make a request for an independent medical examination. Collective agreements usually provide for an independent medical examination in limited situations.
Those employers without established policies on requesting medical information and medical examinations, whether in non-union or unionized settings, ought to consider the development of a policy, or clauses in the collective agreement, that specify when the employer may require medical information and what information may be requested. Employers should also consider the development of a policy or clauses in the collective agreement that specify the circumstances in which the employer may require an employee to undergo a medical examination by a physician designated by the employer.
Stay tuned for Part 2: Accommodation.