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 was on the process of accommodation. In this Part 3, we will discuss when the duty to accommodate ends or, in legal terms, the circumstances when the employer reaches the point of undue hardship.
The main purpose of accommodation bears repeating:
“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]
The Supreme Court of Canada[ii] has 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 Supreme Court of Canada has 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.”[iii]
Where an allegation of discrimination gives rise to a potential duty to accommodate, there are two main streams of defence available to an employer. One is the bona fide occupational requirement (“BFOR”), and the other is that the employer has accommodated to the point of undue hardship.
The employee must first prove a prima facie case of discrimination – for a discussion of what constitutes discrimination in the employment context, see the Spring edition of LoGo Notebook.
Once a prima facie case of discrimination is proven, the employer may assert that the requirement(s) of the position cannot be met if the employer is required to accommodate the employee, as a result of a BFOR. If the employer establishes a BFOR, then there is no discrimination.
The Bona Fide Occupational Requirement
The basis for a BFOR is set forth in section 13(4) of the Human Rights Code which states:
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 race…(as above)…
(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
Determining whether an employer’s actions are discriminatory and therefore in breach of the Human Rights Code, or are based on a BFOR, requires the following analysis as set forth by the Supreme Court of Canada in Meiorin[iv]:
- Whether the employer adopted the standard for a purpose rationally connected to the performance of the job;
- Whether 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
- Whether the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, the employer must demonstrate that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
In Meiorin, the Court concluded that unless no further accommodation is possible without imposing undue hardship, the employer’s standard is not a BFOR and the prima facie case of discrimination stands.[v]
A BFOR was originally defined in 1982 by the Supreme Court of Canada as follows:
“To be a bona fide occupational qualification and requirement a limitation…must be imposed honestly, in good faith and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.”[vi]
Step One for BFOR: Rational Connection Between Occupational Requirement and Job Performance
The purpose of the BFOR must be identified. What is the occupational requirement, and why is it a BFOR? This part of the employee’s job must be done, or is essential. Novel or complex questions may require an opinion from an expert who conducts an analysis of the job in order to demonstrate how a particular requirement is related to the performance of the job.
Some common standards that are applied include:
(i) Safety – Whether a safety standard is a BFOR will depend upon the position and whether the employee’s disability causes serious safety concerns. Individual testing may be needed, if possible and practical, as well as consideration of the nature of the work environment and the duties and skills needed to perform the position. An employer must provide substantive evidence that an “employee’s physical or mental condition is having a negative impact on job performance.” This negative impact can include serious safety concerns and must be assessed in light of the following:
- There must be a real risk as opposed to speculation. The employer must provide evidence to prove the degree of risk; the more dangerous the position the less risk would be required for a safety standard to qualify as a BFOR.
- The employer is not entitled to set standards higher than necessary for work place safety or that are irrelevant to the work required, and which arbitrarily exclude certain classes of people.
- Individual testing is required unless the employer can demonstrate that it would constitute undue hardship.
- The employer must prove that there is no reasonable alternative to the occupational requirement.
Cases Where Safety Accepted as BFOR
In some cases, employers have proved that there is an unacceptable risk to the safety of employees, co-workers or the general public, if the person is unable to perform the BFOR. Examples include:
- WCB requirement for use of a SCUBA gear in the event of a hydrogen sulphide gas leak. Sikh worker removed from a recast operation as he could not obtain a seal on his facemask with a beard.[vii]
- Employees who cannot control or manage a disease. A disease of an unpredictable nature resulting in incapacitating pain in Canadian Air Force employee who was required to at all times be a soldier, despite the fact that he was employed as a cook.[viii]
- Uncontrolled Crohn’s disease in a wildfire firefighter.
- An employee with uncontrolled epilepsy who was moved to a different position; an employer was justified in barring an employee with unpredictable and debilitating effects of panic anxiety disorder from working in an area with log-moving equipment; hearing loss in a firefighter.
- Where the disability may affect an employee’s performance in an emergency. This is often used with mandatory retirement policies, based on a link between advancing age and decreased physical and mental capacity (fire fighters, police officers)
Cases Where Safety Rejected as BFOR
- The disability can and is being controlled. No blanket exclusion is permitted for employees with epilepsy. An employer has to prove that a seizure free policy is reasonably necessary.
- Being free from a degree of coronary artery disease and risk of heart attack for chief marine engineer officer was not an acceptable standard.
- A requirement that a miner be free of diabetes.
- If an employee’s disability prevents the employee from performing the essential requirements of the job, and thus significantly affects his or her efficiency and that level of efficiency is demonstrated to be a BFOR.
- A reasonable standard and not perfection is required. The employer must be able to establish what level of efficiency or productivity was required before accommodation and after. An efficiency standard cannot be raised for the disabled worker alone.
(iii) Economic Reasons
- These are very rarely accepted. They have been accepted in a case where an employer was not required to provide expensive training to an employee deemed already not suitable for that position, when she was unable to continue her current position.
- An employer would need to prove the particular individual’s productivity was so low it was costing an excessive amount to keep the person working generally almost to the point of causing the employer to no longer be viable.
(iv) Maintain Internal and External Confidence
- This factor was applied to a police department as it related to the integrity of the police department and its ability to perform the function of law enforcement. [ix]
- This could be applicable in some local government positions in order to maintain internal and external confidence of Council or Board members and the public in upper level management positions such as Chief Administrative Officers.
- A reasonable record of attendance has been held to be rationally connected to the performance of the job.[x] However, absentee levels of 30 to 35% have sometimes been considered acceptable.
- There must be evidence that the essential requirements of the position are not being performed, due to poor attendance.
Step Two: Honest and Good Faith Belief that Occupational Requirement Necessary for Legitimate Work-related Purpose
The threshold for the employer at this stage is relatively low. Absent a suggestion that the standard was not adopted with honestly held good faith as to its necessity, this factor is usually presumed. Employers should avoid conduct that suggests bad faith, and should not rely on factors not applicable to the workplace or the performance of the duties of employment. Employers cannot put standards in place in order to prevent certain categories of individuals from working in a position.
Step Three: Occupational Requirement is Reasonably Necessary to Accomplish Legitimate Work-related Purpose
The question here is whether a more reasonable alternative to the discriminatory policy was feasible. The standard must apply some proportionality.
This test at this stage is sometimes equated with the undue hardship test. The case law continues to be divided as to whether there is a duty to accommodate when a BFOR has been established. In the federal human rights legislation, a statutory duty to accommodate with the BFOR has been added. This is not the case in BC.
What is a reasonable BFOR? One example of a really basic BFOR is requiring an employee to provide services for compensation such as pay and vacation pay. The BFOR must be essential to the performance of the position.
Once an employer has established a BFOR, then if they refuse to hire or continue to employ the person or move them to a different position they are not acting in a discriminatory manner as they cannot perform the bona fide occupational requirement(s) of the position.
Undue Hardship: What is it? Are you there yet?
Cases since Meiorin have struggled with whether it must be impossible for the employer to accommodate. Some cases now indicate that the employer is required to demonstrate that further accommodation is not possible short of undue hardship, rather than that it is impossible to accommodate.
Two Supreme Court of Canada cases have added some depth to the undue hardship test as demonstrated in the following quotes:
“Undue hardship resulting from the employee’s absence must be assessed globally starting from the beginning of the absence, not from the expiry of the three-year period.” [xi]
Former cases set the date the employee was denied the accommodation as the time to assess undue hardship. Now it is the overall period in which the employer has been involved in accommodation:
“The duty to accommodate is neither absolute nor unlimited. The employee has a role to play in the attempt to arrive at a reasonable compromise. If in Ms. Brady’s view the accommodation provided for in the collective agreement in the instant case was insufficient, and if she felt that she would be able to return to work in a reasonable period of time, she had to provide the arbitrator with evidence on the basis of which he could find in her favour.”[xii]
The employee must prove that they were able to return to work in a reasonable period of time or that they attempted to arrive at a reasonable compromise. Failure to accept an offer of reasonable accommodation by an employer has resulted in dismissal of the human rights claim. In some cases the employer has been found to have met the duty to accommodate when the employee was not forthcoming and failed to disclose sufficient details of his or her disability:
“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.” [xiii]
This suggests that there is a line to be drawn in determining how far the employer must go in order to accommodate:
“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.”[xiv]
Application of the Undue Hardship Test
It is important to emphasize that each employee and their situation must be investigated and the employer’s accommodation designed to meet their specific needs. Further, the decision of an employer to terminate the employee also needs to be assessed carefully and individually. The following are some factors to consider when making such a determination, only some of which may apply to the particular situation:
- Financial cost, the assessment of which may be influenced by the size of the employer’s operation.
- Costs may need to be so substantial that they would alter the essential nature for the enterprise or be so significant that they affect its viability.
- Disruption of a collective agreement.
- Problems with the morale of other employees, these would need to be significant.
- Interchangeability of the workforce and facilities, the assessment of which may be influenced by the size of the employer’s operation. This may be particularly applicable for senior management/CAOs or other municipal officers when there is a lack of staff to perform the duties of the municipal officer.
- Safety risk, including the magnitude of the risk and the identity of those who bear the risk.
Employee’s Self-Help Obligation – Employees have been required in some cases to:
- Participate in the recommended treatment programs.
- Provide medical information.
- Adhere to a program – in one case an employer was permitted to terminate as a result of the employee’s failure to lose significant weight impairing job performance after the provision of a weight loss program at no cost.
- Follow a physician’s advice, such as to involve a vocational counselor.
- Take medication as prescribed.
- Look for appropriate daycare to enable employee to work nights.
- Upgrade their skills on their own time.
Employee’s Duty to Act Reasonably and to Compromise
- Once an employer initiates a reasonable proposal that, if implemented, would fulfill the duty to accommodate, the employee has a duty to facilitate the implementation of the accommodation.[xv]
- An employee’s failure to implement a program of reasonable accommodation will result in a finding that the employer met their obligation to accommodate.
- An employee cannot expect a perfect accommodation and is required to accept a “reasonable accommodation that is reasonable in all the circumstances.”[xvi]
- An employee may be expected to take various steps on their own and make various sacrifices.[xvii]
- When an employee wanted to move locations but no position was available in the new location, the duty to accommodate was suspended until a position available and employer did not have to pay difference in spouse’s employment or real estate price differences.[xviii]
- An employer was found to have met the onus of accommodation by establishing the employee did not really want to be accommodated, as that would jeopardize their CPP Disability Benefits and WCB retraining program.
- There are limits to the accommodation the employee must accept such as those that would exacerbate their medical conditions based upon increased physical requirements.
Employer’s Duty to Investigate and Consider Range of Possible Accommodations
- Duty is to take reasonable measures to accommodate to the point of undue hardship.
- Consider possibilities for accommodation.
- Obligation is to investigate accommodation.
- Goal is “to provide equal access to the workforce to people who otherwise encounter serious barriers to entry.”[xix]
- Goal “to respect the inherent worth and dignity of the individual being accommodated, within the limits of undue hardship.”[xx]
- Need to investigate the nature of the disability, the physical or mental demands associated with a given job, the employee’s functional abilities and the possibilities of modifying workplace standards to overcome the disability
- An employer can terminate a disabled employee if it results in the employee not being able to perform the essential requirement(s) of the job but must first establish that it cannot accommodate the employee to allow him or her to perform job.
- Employer not required to hire another person to get the disabled person’s job done but must prove that lesser measures would not have enabled the employee to perform at the level performed before the illness.
Examples of Accommodation
- Part-time status
- Split shifts
- Scheduling work only at one location
- Frequent breaks
- Allowing the employee to attend medical appointments and treatments
- Accepting medical absences without penalty for seniority or job status
- Lengthy absences on the other hand may also reach a point that is considered undue hardship
- Obtaining medical evidence regarding the complainant’s abilities and modifying her duties based on this information
- Discussing options with employee and/or union
- Shorter shifts
- Considering restructuring of position to change duties
The Following May be Seen as Undue Hardship
- Creating a new position expressly suited for the disabled person with new duties previously non-existent and that do not suit the employer’s needs.
- Duty to accommodate allows employees to keep their jobs as long as they are able to perform the duties of those jobs.
- Lengthy absences that result in the employee being unfit to perform the essential duties of their position and no other job can be offered.
Questions from the Supreme Court of Canada to Consider
- Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
- If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
- Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
- Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?
- Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
- Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles?
When Do you Reach Undue Hardship?
How long does an employee have to be off work due to a disability before they can be terminated?
In one case, an employer did not discriminate when terminating an employee who had been off work after three years with supporting medical evidence to establish that they would not be returning to work for an indeterminate time. The key is that there is medical evidence to support the employee’s inability to return to work indefinitely and individual assessment and evidence is required. Make no assumptions.
Another employee missed 960 days of work in a seven-year period. There was a determination that she was unable to fulfill the basic obligations of her employment for the foreseeable future.
Some policies force retirement after being off on medical leave in excess of two years. These have primarily been found to be discriminatory. Individual assessments of the employees are required. The period of leave required needs to be “long enough to allow manager to accommodate the needs of employees with special recovery problems, including retraining.”[xxi]
Essentially, the point of undue hardship is akin to frustration of contract. The terms of the employment contract cannot be fulfilled and therefore the employer is entitled to breach the employment contract and terminate the employee.
Ramifications of Discrimination
If the employee is terminated and the employer is found to have acted in a manner that is discriminatory under the Human Rights Code, the employee will likely recover at a minimum reasonable notice for the loss of their employment, likely more. In addition, they may be awarded damages for loss of dignity, humiliation and hurt feelings that range from $5,000 to $200,000. In addition, the employer will be paying their own legal fees, its own internal staff time costs, and the expenses and legal costs of the complainant if the employer is unsuccessful.
Thus, the damages in this context could be significantly more than a wrongful dismissal action where damages are generally limited to the monetary equivalent of the reasonable notice period, legal fees and costs if unsuccessful.
Top Ten Points
- Identify essential requirements of the employee’s position. Draft your job descriptions and job advertising in the future with this in mind.
- Assess the employee’s medical condition, limitations and restrictions. Seek medical information.
- Apply the requirements of the job to the employee’s restrictions. How can their duties be modified or altered in order to allow the employee to keep working? Can they continue with their current position? Is it possible to put them in a different position and is one available?
- Consult with the employee and the union if applicable to assess options.
- Set time frames and measurable goals. Reevaluate how the accommodation is going every 2-3 months, allowing time for the employee to get used to the work they are doing.
- Be flexible with time frames as this is dependent on how the employee’s body/mental state is handling the workload. Readjustments may be needed. Revise and monitor.
- Keep your eyes open for other positions more suitable.
- As usual document, document, document.
- Request updated medical information on a regular basis and monitor.
- Prior to termination assess the essential requirements of the employee’s position and establish the evidence to demonstrate they cannot perform the essential requirements of their position. Document. If terminating based on lengthy absences seek a medical letter advising when they are able to return to work. If the answer indeterminate and the employee has been absent for an extended period, the employer likely can terminate.
Overall caution is required and a methodical approach necessary to the handling of a disabled employee. Of course, you should consult your lawyer for advice. Early legal advice can be the key to reducing the costs associated with handling a disabled employee and avoiding Human Rights complaints, wrongful dismissal and/or constructive dismissal legal actions, grievances and the monetary implications if the employee is successful.