The Disabled Employee – Part 2: The Duty to Accommodate

In Part 1 of this 3 part series we discussed the definition of disability, requesting medical information to determine if there is a disability, and what accommodation may be required. In Part 2 the focus will be on the process of accommodation.  In Part 3 we will discuss when the duty to accommodate ends or in legal terms when has an employer reached the point of undue hardship.

“The duty to accommodate imposes a positive duty upon the employer to accommodate the workplace to provide an employee protected under human rights legislation with an equal opportunity to perform a job for which he or she is otherwise qualified.”[i]

An employee’s right not to be discriminated against is balanced against the employer’s right to conduct its business in a safe, economic and efficient manner. In order to achieve this balance the concept of “undue hardship” is applied. However, this test is fairly onerous in that the employer must show that it is impossible to accommodate an employee without imposing undue hardship. If the employer is able to demonstrate undue hardship they do not have to accommodate beyond this point.

The undue hardship test has been further clarified with the following statements:

“the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.”[ii]

“the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.”[iii]

“the employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.”[iv]

The duty to accommodate has been said to be unreasonable if there is “undue interference in the operation of the employer’s business and without undue expense to the employer.” Other cases go further and indicate that the employer must show that the impact was considered, and that there was no reasonable alternative short of causing undue hardship to the employer.[v]

The accommodation process begins with the principle that the parties need to act reasonably and cooperatively.[vi] The employer and the employee as well as the union have their roles.

The employee’s responsibility in the process involves:

1. The initial request for accommodation;
2. Demonstrating the need for accommodation;
3. Furnishing sufficient information to verify the need for accommodation and to identify specific accommodation needs;
4. Assisting in the search for accommodation; and
5. Accepting and facilitating implementation of the accommodation that is reasonable in the circumstances.

The employer’s responsibility in the process involves:

1. Upon receiving the request for accommodation, carrying out a thorough search for accommodation within a reasonable time. This may involve requesting information from co-workers, and considering possibilities;
2. Deciding upon the accommodation within a reasonable time;

The union’s responsibility in the process involves:

1. Responsibilities that are similar to the employer’s, in some workplace situations;
2. Sometimes assisting with negotiations regarding formulating the accommodation or application of a condition of employment; and/or
3. Facilitating the accommodation process.

The Employee’s Duty of Self-Help

The employee has a duty of self-help within the accommodation process. Employees have been expected to show that they acted reasonably by mitigating in so far as possible the disruptions that the disability may cause.[vii] There is an expectation that they will participate and co-operate in treatment.[viii]

The Employee’s Duty to Act Reasonably and to Compromise

If the employer’s accommodation proposal is reasonable the employee has a corresponding duty to assist with implementation of the proposal. The employee has a duty to accept what may be a less than perfect accommodation if a “perfect” accommodation would result in undue hardship. When the employee insists on being moved to another location, but a position is not available, then the duty to accommodate may be suspended until a suitable location could be found.[ix] In some situations the employee may be expected to bear part of the cost or attend a program after work hours, may have to change their schedule or tasks to get a task done, and may even have to learn to function with a certain level of discomfort and pain.[x]  The employer’s duty to accommodate may be met if the employee fails to agree to a reasonable accommodation.

However, there are also limits as to how far an employee must go with accommodation. If the accommodation is conditional upon the  treating physician’s agreement and the offered position requires significant additional physical effort such accommodation may be refused. Also if the accommodation does not result in what the tribunal determines is undue hardship, the employee may be entitled to refuse the offered accommodation. In this situation the employer may not have gone far enough in providing full accommodation to the point of undue hardship.

Employer’s Duty to Investigate and Consider Options

The last article discussed the employer’s duty to investigate. It is important that the employer handles each case individually and does not base the accommodation on a formula or predetermined schedule. The onus is on the employer to ensure that there is a collaborative process to discuss accommodation. Where position is not available to accommodate the employee’s physical restrictions, in some cases the employer has been found to have met the duty to accommodate; however, in some circumstances the tribunal or arbitration board has determined the employee ought not to have been terminated but rather placed on lay-off and allowed to heal. [xi]

One arbitrator held that there is no general duty for an employer to involve the union in its search for accommodation.[xii] Another arbitrator held that it is imperative, while other arbitrators have stated it is advisable, that a union be involved in a search for accommodation. If accommodation is not agreed upon, the employer who does not include the union in the process, may be found not to have met their duty to accommodate. Union involvement may assist the employer later if the employee says they have not been accommodated.

The employer needs to investigate the abilities and needs of the employee and compare these to the workplace standards or the bona fide occupational requirements (BFORs) and determine what accommodation can be provided to the point of undue hardship. [xiii]

Workplace Standards or Bona Fide Occupational Requirement (BFOR)

The Supreme Court of Canada in Meiorin[xiv] stated that a bona fide occupational requirement may justify a standard which is otherwise prima facie discriminatory, by establishing:

1. the employer adopted the standard for a purpose rationally connected to the performance of the job;
2. the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
3. the standard is reasonably necessary to the accomplishment of  that  legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

“Unless no further accommodation is possible without imposing undue hardship, the standard is not a BFOR in its existing form and the prima facie case of discrimination stands.” [xv]

Investigation into workplace standards involves analyzing the duties, functions and responsibilities of the person’s position and other possible positions. This may involve a physical demands analysis from outside experts in the field to demonstrate what is physically required to perform a particular job. This would then be compared with what the employee is able or not able to do. This may or may not involve individual testing, physically or mentally to determine whether the person has the physical ability or the aptitude to perform the work.

A number of cases have indicated that an employer should not assume an employee cannot perform the work, rather they must demonstrate that the employee cannot do the work.  In some cases employers have been ordered to attempt a trial period to determine if the employee could perform the work. However, repeat work trials may not be required if all evidence indicates it would fail. In some cases a physician’s recommendation has not been accepted if they are unfamiliar with the workplace and requirements of the position.

An employer’s efforts should be focused on aiding the employee to do the parts of their position that they are unable to do, due to the disability.  In other words the accommodation needs to be tailor-made to the employee’s specific disabilities. The options are wide and varied and ought to be considered in a thorough and neutral fashion. In addition, in some cases the employer may have to modify or alter their workplace standards. Some standards may have to be dispensed with altogether if the work object can still be achieved. Employers would not, however, be required to dispense with essential workplace standards that are inextricably linked with an employer’s legitimate work-related purpose or the “minimum an employer can expect from someone in performing their job.”[xvi]

In the text The Duty to Accommodate in Employment the authors suggest the use of the American Disabilities Act regulations to assist in determining what are the essential duties of the position as follows:

“Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing).

Factors to consider in determining if a function is essential include:

• whether the reason the position exists is to perform that function,
• the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
• the degree of expertise or skill required to perform the function.

Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered as evidence of essential functions. Other kinds of evidence to consider include:

• the actual work experience of present or past employees in the job,
• the time spent performing a function,
• the consequences of not requiring that an employee perform a function, and
• the terms of a collective bargaining agreement.”[xvii]

The employee must be able to perform those duties that are considered essential and cannot be dispensed with. This can be a challenging task and the law is less than certain as to how such an assessment is to occur. Again, the onus is on the employer to conduct an individualized assessment of the employee and their job duties and determine which are essential to the position and which may be considered secondary. The employer must then determine if accommodation can occur and how. Given this onus it is advisable for employers to develop a policy and procedure for the handling of accommodation that is expected to be modified to each individual employee’s situation.

Some forms of accommodation that has been expected of an employer with a larger number of employees have included:[xviii]

• Accepting lengthy medical absences without penalty in terms of seniority or job status;
• Obtaining medical evidence regarding the employee’s abilities and modifying their duties accordingly;
• Discussion options with employee and union, if applicable;
• Allowing employee to attempt shorter shifts with lighter duties;
• Hiring extra employees to perform the duties the employee is unable to perform;
• Considering restructuring of heavier duties and posting employee to other position.

Some accommodation that has not been expected include:

• Creating of a new position comprising new duties not previously existent and not suited to the employee’s needs;[xix]
• Altering a position by removing duties that are significant in terms of time and responsibility permanently;[xx]
• Maintaining employment as long as employee stays with the employer.[xxi]

Regarding absenteeism, the tribunals and courts require an employer to accommodate absences due to disabilities to the point of undue hardship. In one case involving an absenteeism rate of 86% over a three-year period, the employer refused to reinstate the employee to his former position after receiving a note from his physician that he was fit to work. The Canadian Human Rights Tribunal determined that the employer failed to assess adequately whether or not the employee was fit to return to his position, and whether the employee was capable of performing the essential job requirements. The employer was required to provide evidence that the employee could not perform the requirements of the job. The Tribunal stated that one way to assess these capabilities was to allow the employee to try.[xxii]

In order to terminate for excessive absenteeism the employer must prove that the attendance requirement is rationally connected to the job, and that the disability renders him unfit to perform the essential duties of his job or any other job which the employer could offer as part of the duty to accommodate.

In a landmark Supreme Court of Canada case, Keays v. Honda Canada Inc.[xxiii], the employee started work in 1986 and soon after began suffering from Chronic Fatigue Syndrome (CFS), but was not diagnosed until 1997.

Honda began to discipline Keays for his absences, then required him to produce a doctor’s note every time he was absent, demanded he see a company physician who advised that the employee could return to work on the production line and later required Keays to see another company physician. Keays sought legal advice and refused to do so until the parameters of the examination were clearly stated. Honda concluded that Keays’ refusal was insubordination and terminated his employment.

The Ontario Superior Court of Justice awarded Keays 15 months’ notice plus $500,000 in punitive damages against Honda. The matter was ultimately appealed to the Supreme Court of Canada which set aside the award against Honda for $500,000 concluding that discrimination was not the basis for an independent actionable wrong for the purpose of allocating punitive damages.

The Keays decision outlines the challenges of dealing with an employee who is absent from work due to an alleged illness or disability, in a situation in which the illness has no external measurable factors. In addition, the case provides a caution to employers not to prejudge the validity or nature of an employee’s disability, or to be unduly insensitive. It is important to keep this decision in mind when determining how to manage a disabled employee.

The Supreme Court of Canada provided the following guidance:

“The test [for accommodation] is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.”

Further the Court stated:

“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. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory.”[xxiv]

One of the most recent human rights cases on accommodation just came out in May of 2013 (Cassidy v. Emergency Health Services Commission (EHSC))[xxv]. The case had a long history. The employee, an ambulance attendant, had Multiple Sclerosis with medical evidence to indicate that the only symptom affecting his employment was his inability to palpate a pulse. The BC Ambulance Service (BCAS, part of the EHSC) initially permitted him to work as a driver only and then stopped him from obtaining any shifts to drive.

After the matter was sent back to the BCHRT by the BC Supreme Court, the BCHRT determined that the employer and an individual manager had acted in a discriminatory manner by not providing shifts to the employee. The BCHRT determined there was no evidence that the inability to palpate a pulse could result in harm to a transported patient. There was evidence that there were 135 ambulance attendants who were in driver only positions similar to this employee. The BCHRT determined that the employer had applied an arbitrary standard for disqualifying the employee from driving at all in January 2006. Despite medical evidence to the contrary the employer failed to seek a suitable accommodation. Rather the “BCAS’s approach took on the flavour of seeking ways to prevent accommodation for its employee.”

The BCHRT then stated that the test for employers is that no accommodation short of undue hardship can possibly be available. In order to satisfy this requirement the BCAS would need to be shown evidence to link the outright refusal to accommodate with an undue safety risk.

Another significant issue from the case is that a manager was found to be personally liable for his discriminatory treatment. The manager used information he knew or should have known was tainted, such as concerns about the employee’s ability to drive an ambulance, in order to delay the employee’s accommodation. Once the union and employer came to an agreement about the employee’s return to work as a driver only, this manager emailed expressing that the employee held his license “under false pretenses” and emailed the unit chief advising him not to use the employee until all issues were finally resolved including another medical opinion, despite two positive medical opinions and the employer/union agreement. The manager and another employee then altered the manner of scheduling shifts for the drivers which significantly and detrimentally affected the employee’s ability to access shifts.

The BCHRT further noted that no evidence was presented on the effect of accommodation on morale, but noted that a morale problem that is not consistent with the Human Rights Code is not considered a bar to accommodation. The BCHRT further found that the manager in question had an obligation to dispel false or inaccurate information spreading around the workplace.

Top Ten Tips for the Accommodation Process

1. Assess each employee on an individual basis to determine what he or she can and cannot do.
2. Assess the employee’s current position and determine what are the essential duties of that position and what are the secondary duties.
3. If the employee is unable to perform the essential duties of their position, determine if there are ways to modify the essential duties, or whether the essential duties really essential to the position. Consideration of other positions may be required, or the shuffling of duties and other options available to enable the employee to continue to work.
4. If the employee is unable to perform the secondary duties of their position, can these tasks be modified, altered, or moved to another position, in order to have the employee continue doing the essential duties of their position.
5. Develop an accommodation proposal and present this to the employee.
6. Ensure that all accommodation discussions are well documented and work towards the goal of effective accommodation, not thwarting accommodation.
7. It may or may not be necessary to involve the union in the discussions. Such involvement may assist in determining whether or not the employer has met the duty to accommodate.
8. Assist in the implementation of the accommodation and dispel any misinformation that may be communicated in the workplace.
9. Follow up to determine how the accommodation is working or ways to provide a fuller accommodation.
10. The employer must accommodate to the point of undue hardship and is only relieved of such a duty when the person is unable to perform the essential duties or a bona fide occupational requirement (rationally connected to performance of job, bona fide reason for the duties and no further accommodation can be given without undue hardship).

The next article in this series will discuss more about when the employer can say that they have satisfied their duty to accommodate and they need go no further.