What Litigation Lawyers Need to Know about the Duty to Accommodate Disabled Employees in the Workplace. Date: September, 2006

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1 Hugh R. Scher* What Litigation Lawyers Need to Know about the Duty to Accommodate Disabled Employees in the Workplace Date: September, 2006 Lawyers who represent car accident victims and other disabled employees in insurance or disability benefit litigation are often unfamiliar with the basic principles of employment and human rights law that govern the relationship between the disabled employee and the employer. This article addresses the rudimentary principles that lawyers should know about the duty to accommodate disabled employees in employment. It should not be taken as a substitute for expert legal advice in circumstances where a disabled employee s employment or human rights are in dispute but should assist the lawyer to know the proper questions to ask in order to determine whether or not the disabled employee s rights are being respected or are at risk of being violated. The duty to accommodate is central to the equality, human dignity and full participation of disabled employees in the workplace. It has its origins in human rights legislation but its application and fundamental importance today has grown significantly with the advent of the Canadian Charter of Rights and Freedoms and pronouncements by the Supreme Court of Canada which elevate the duty to accommodate to a quasi-constitutional status, which make its application mandatory to all parties to collective agreements in Canada and which exposes all employers to the prospect of increased liability in punitive damages when its violation forms part of a pattern of egregious conduct on the part of an employer which calls out for punishment or denunciation. Nature of the Duty The duty to accommodate requires that employers level the playing field for disabled employees by removing barriers to their full participation in the workplace imposed by discriminatory workplace standards, rules or practices. These discriminatory standards affect an employee s equal participation and access to the workplace and represent a human rights violation where they cannot be justified by an employer as a bona fide occupational qualification, the removal of which represents an undue hardship to the employer. For injured or disabled employees returning to the workplace, their disabilities may make it difficult or impossible to engage in all of the duties of their regular employment or to meet certain workplace standards. In those circumstances, the employer has a duty to accommodate the disabled employee by modifying or eliminating workplace standards that amount to discriminatory barriers to the participation of disabled employees in the workplace. The Ontario Human Rights Code ( Code ) presumes that disabled employees are able to work unless their disabilities prevent them from performing the essential duties of their position and the obligation to accommodate the disabled employee represents an undue hardship to the employer C:\Users\jshadoa1\Downloads\ (2).doc

2 2 because of cost, outside sources of funding and health and safety requirements. 1 What is Accommodation? Accommodation is the removal of discriminatory barriers to the participation of people with disabilities in the workplace. Appropriate accommodation is determined based upon an assessment of the individual needs and requirements of the disabled employee and an exploration of how those needs and requirements can be met through modifications to discriminatory workplace standards. 2 Examples of accommodation would include the requirement to put in an elevator to enable a disabled employee in a wheelchair to access a multi-level workplace. It could include providing a deaf employee with access to a sign language interpreter to enable them to communicate with coworkers and customers, or to have access to a telephone teletype system (TTY) which enables them to type their telephone communications and to receive responses in written form. It may include providing a blind employee with access to Braille print in order to access written communications or to provide them with a voice-interactive computer program that enables them to speak to and hear a computer in order to communicate with others. In addition to renovations or adaptive technologies, accommodation may require an employer to alter an employee s job description to remove from it those duties which are physically impossible for a disabled employee to complete and to replace those duties with others that are within the disabled employee s capabilities. For example, the requirement that an employee with Epilepsy maintain a valid driver s licence in order to continue employment as a chef would impose an arbitrary rule that may disqualify the Epileptic employee from carrying out the essential duties of that position which they would otherwise be capable of doing if the requirement to hold a valid driver s licence were removed from the job description. Maintaining such an arbitrary requirement would require the employer to demonstrate that it represents a bona fide occupational qualification, the removal of which would represent an undue hardship to the employer. The Accommodation Process The accommodation process is a shared multi-party responsibility. Everyone involved should cooperatively engage in the process, share information, and avail themselves of potential accommodation solutions. The Ontario Human Rights Commission ( OHRC ) has established guidelines on disability and the duty to accommodate identifying the duties of parties in the accommodation process. 3 1 Ontario Human Rights Code at S British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 ( Meiorin ) 3 Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate at p. 23 ( Guidelines )

3 The person with a disability is required to: advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is); make their needs known to the best of their ability, preferably in writing, in order that the person responsible for accommodation may make the requested accommodation; answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate, and as needed; participate in discussions regarding possible accommodation solutions; co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability; meet agreed-upon performance and job standards once accommodation is provided; work with the accommodation provider on an ongoing basis to manage the accommodation process; and discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human resources. The employer is required to: accept the employee s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise; obtain expert opinion or advice where needed; take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions as part of the duty to accommodate; keep a record of the accommodation request and actions taken; maintain confidentiality; limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request; grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language; and bear the cost for any required medical information or documentation. Unions are required to: take an active role as partners in the accommodation process; share joint responsibility with the employer to facilitate accommodation; and support accommodation measures irrespective of collective agreements, unless to do so would create undue hardship. The duty to accommodate requires that unions who are party to a collective agreement work with employers and employees to find a suitable accommodation even where that accommodation requires a deviation from the strict application of a collective agreement that may impact upon the rights of other members of the bargaining unit. For example, where the accommodation of a disabled employee requires a transfer to a different position within the bargaining unit, the employer may be 3

4 required to deviate from a provision in the collective agreement which enables more senior employees to bump more junior employees out of a position where the disabled employee is required to assume the alternative position that would otherwise have created a vacancy for a more senior employee. 4 While employees are required to co-operate in the accommodation process, the employer s rights in these circumstances are not without limits. In particular, employers owe a duty to employees to be honest, fair, transparent and reasonable both in their requests for medical information and assessment and in the accommodation process generally. Where an employer fails to act honestly, fairly, reasonably and in good faith, they may expose themselves to significant liability for failing to accommodate. The Ontario Superior Court in Keays v. Honda (2005) O.J. No (S.C.J.) recently held an employer liable for the wrongful termination of an employee with Chronic Fatigue Syndrome where the employer failed to adequately explain the purpose of their request for medical assessment, the method by which that assessment was to be conducted and the scope of the assessment in assessing employee disability and alternatives to accommodation. The court granted the terminated employee general damages equivalent to 15 months regular notice, 9 months notice for the employer s bad faith in the manner of dismissal, $610, in legal costs including a substantial premium and a record $500, in punitive damages as a result of the employer s discrimination and harassment as part of a corporate conspiracy to terminate the disabled employee in order to avoid the employer s duty to accommodate. The Accommodation Spectrum The duty to accommodate is an individualized process which requires employers to accommodate employees in their regular positions of employment to the extent that such accommodations are possible without imposing upon employers an undue hardship. That said, employers may be permitted to move away from an employee s regular job where necessary to accommodate the disabled employee in employment. For example, a police officer who becomes wheelchair-bound as a consequence of an accident may not be able to fulfil all the essential duties of the position of police officer but may be able to perform certain non-physical duties of the position such as completing paperwork, conducting interviews, or performing fraud investigations by telephone or computer. Accommodation of such an employee may require modifications in their job duties which remove the physical components of the job and replace those with more sedentary tasks that will enable the police officer to continue in their position in a modified form. In some instances however, it may not be possible to shift job responsibilities and replace more physically demanding duties with other sedentary responsibilities. In such circumstances it may be necessary to search out alternative positions for the disabled employee within the workplace that meet with their restrictions or limitations. For example, where a police officer becomes disabled and is unable to perform the physical duties of the position and there are not sufficient sedentary tasks 4 4 Central Okanagan School District No. 23 v. Renaud [1992] 2 S.C.R. 970 ( Renaud )

5 that can be joined together to form a sustainable position of employment, the employer may be justified in exploring alternative positions within the workplace such as moving that police officer into a position as dispatcher, payroll clerk or human resources representative. Throughout the accommodation process, the employer s actions must be guided by concerns for the human dignity, integration and maximum participation of the disabled employee within the workplace. The Duty to Accommodate Legal Principles The Code protects against both direct and adverse effect discrimination. Direct discrimination includes where an employer policy directly targets a person with a disability. For example, people in wheelchairs need not apply for this position as our facilities are not accessible. Adverse effect discrimination occurs where a seemingly neutral policy has a discriminatory effect upon a person with a disability. For example, in order to be eligible for the employment position of chef, a person is required to hold a valid driver s license. Such a requirement is not targeted at any particular individual or group. However, if the person applying for the chef position has Epilepsy which prevents them from having a valid driver s licence, the requirement to maintain a licence imposes a discriminatory barrier to employment. In these circumstances, the seemingly neutral requirement becomes an arbitrary and discriminatory limitation on the disabled employee s ability to carry out the duties of a chef. It was not originally clear whether or not the duty to accommodate would apply to both direct and adverse effect discrimination. Recent case law has merged these two concepts together and created a unified approach to discrimination and the duty to accommodate. 5 Where a case of discrimination is found to exist, the person responsible for accommodation must establish on a balance of probabilities that the workplace standard: 1. was adopted for a purpose or goal that is rationally connected to the function being performed; 2. was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal; and 3. is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship. As a result of this test, the standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. This ensures that each person is assessed according to their own personal abilities instead of being judged against presumed group characteristics. In essence, the person responsible for accommodation must show that accommodation has been provided up to the point of undue hardship Meiorin, Entrop v. Imperial Oil (2000), 50 O.R. (3d) 18 (C.A.) 6 Meiorin, Entrop v. Imperial Oil (2000), 50 O.R. (3d) 18 (C.A.), British Columbia (Public service Employee Relations Commission) v. BCGSEU [1999] 3 S.C.R. 3, ( Grismer ), at para. 20, Guideline at p. 23

6 Limitations on the Duty to Accommodate Undue Hardship As noted above, accommodation by an employer is required to the point of undue hardship. The Supreme Court has recognized a number of factors relevant to this consideration including financial costs, disruption to a collective agreement, impact on other employees, the ability of an employer to interchange workforce duties, size of an employer and availability of resources as well as risks to health and safety 7. The Supreme Court has recognized that the standard of undue hardship must be kept high so that the duty to accommodate does not lose its meaning and significance in eradicating barriers to the equality of people with disabilities. The court in Renaud stated as follows: The defendant always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship, or that hardship takes the form of impossibility, serious risk or excess costs. 8 There is still some debate as to whether or not the prescribed factors set out in the Code are exhaustive with respect to the standard of undue hardship or whether or not other factors such as those identified by the Supreme Court of Canada may be relevant in the Ontario context. The Human Rights Commission takes the view that limitations on the duty to accommodate relate only to those prescribed factors as set out in the Code and that other factors are not properly considered in the analysis. Those factors most frequently raised by employers relate to business inconvenience, employee moral, customer preference and the impact on collective agreements or contracts. It remains to be determined how the undue hardship standard will develop in Ontario and whether or not some of these other excluded factors may find their way into the Ontario jurisprudence. Whatever its definition, the undue hardship standard is very high and requires an employer to make its case based upon objective evidence. Such objective evidence could include financial statements, budget information, scientific data, and data from empirical studies, expert opinions, detailed information about the activity and the request of accommodation, information about the conditions surrounding the activity and the effects on the person or group with the disability. 9 With respect to cost, the Supreme Court of Canada has said that one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased costs as a reason for refusing to accord the disabled equal treatment. The cost standard must therefore be a high one. 10 Cost will only amount to an undue hardship where it is quantifiable, shown to be related to the accommodation and so substantial that it would alter the essential nature of the enterprise or substantially affect its viability Central Alberta Dairy Pool (1999) 2 S.C.R Renaud 9 Guidelines p.27, Guidelines at p Grismer at para Grismer para. 41, Guidelines p. 30

7 7 Where the undue hardship standard is met and the employer is unable to provide the required accommodation to the employee, this may result in a frustration of contract which could render the employment contract at an end. Given the significant implications of this, the standard is high and the efforts that an employer must take in order to meet its duty are equally significant. The Return to Work Process The duty to accommodate is central to the return to work process as it applies to disabled employees. Both the employer and union must be alive to the limitations and restrictions of the disabled employee and must seek to explore temporary and permanent alternatives within the workplace in order to address those limitations and restrictions so as to enhance human dignity, integration and participation of the disabled employee first within their own position and then within alternative positions within the workplace in the event that sufficient modifications prove to be impossible. As a result of the imbalance of power as between employers and employees, particularly in a nonunionized work environment, the duty to accommodate does not always receive the attention it deserves from employers in their effort to reintegrate disabled employees. For lawyers seeking to assist parties in the work reintegration process, it is imperative to have a full understanding of the rules and responsibilities which apply to each party in the accommodation process. A successful return to work often hinges upon the ability of the employee, employer and relevant health care practitioners to effectively communicate with one another in order to identify an employee s limitations and restrictions, to assess the impact of those limitations on the employee s ability to carry out the essential duties of their own position, or of any other position within the workplace. Further, lawyers must assist their clients to obtain appropriate medical documentation to address the issue of limitations, restrictions and functional abilities relevant to the employee in their return to work. In the event that this information is not adequately presented to and understood by an employer, it may doom the accommodation process to failure and result in a breakdown in the employer/employee relationship and employment termination. Termination from employment can be a life altering event which is extremely damaging to the selfesteem, self-worth and financial sustainability of an employee. It may also have significant implications with respect to employee health and disability benefits. For this reason, it is essential for employees to address these issues prior to any return to work in order to preserve and protect their employment rights, including any rights to ongoing long term disability insurance, health and life insurance benefits. In a unionized setting, collective agreements provide for the ability of employees to file a grievance with respect to any unjust termination for discriminatory reasons. For non-unionized employees, the process is far more complicated involving potential claims of wrongful dismissal in the Superior Court and claims for discrimination and failure to accommodate through the OHRC. WSIB and ESA claims are other possibilities. The choice of forum in these circumstances is not always clear. Whether to proceed by way of a

8 Statement of Claim to the Superior Court or to proceed by way of a complaint to the OHRC often depends on the nature of the remedy which the employee seeks as a result of the wrongful termination. Unlike courts, a Board of Inquiry has the ability to reinstate employees who are wrongfully terminated for reason of an employer s failure to accommodate. By contrast, the court has a greater monetary jurisdiction to grant an award of damages both with respect to pay in lieu of notice upon termination as well as with respect to punitive and aggravated damages based upon the independent actionable wrong of discrimination. Such cases will often involve not only the employer but an insurer in circumstances where a claim of long term disability insurance benefits is at issue. Lastly, the Workplace Safety and Insurance Act provides certain requirements governing the return to work process which obligates employers to maintain employees in employment under certain circumstances. Enforcement of the Duty to Accommodate The duty to accommodate is a central feature within human rights legislation to ensure equality and barrier removal for disabled employees, to enhance human dignity, integration and full participation within the workplace. Originally, the duty to accommodate was the sole domain of Human Rights Commissions and Boards of Inquiry under the Code who were exclusively empowered to enforce the duty as a matter of human rights law. With changes to the Code removing this exclusive jurisdiction, the duty to accommodate has more commonly fallen within the domain of labour arbitrators empowered to interpret and apply collective agreements. In the case of Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324, [2003] S.C.J. No. 42 (S.C.C.), the Supreme Court of Canada ruled that labour arbitrators are required to interpret and apply human rights legislation, including the duty to accommodate in disputes coming before them even where the collective agreement does not specifically provide the labour arbitrator with that authority. Other tribunals are similarly empowered. 12 In a non-unionized setting, courts have recognized that discrimination and harassment may represent the basis for claims of constructive dismissal and courts are entitled to consider discrimination, harassment and violations of the duty to accommodate as part of the constructive dismissal analysis. 13 As noted above, an Ontario Superior Court has recently held an employer liable in punitive damages to the tune of $500, for violating the duty to accommodate and for wrongfully dismissing an employee in order to avoid that duty. This determination is supported by the findings of the Supreme Court of Canada in McKinley B.C. Telecom [2001] 2 S.C.R. 16., which held that discrimination is an independent actionable wrong capable of supporting an award of punitive or aggravated damages. An interesting question remains as to whether or not courts can consider, interpret and apply human rights legislation including violations of the duty to accommodate as the basis for a stand-alone cause 12 Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC Lehman v. Davis, [1993] O.J. No.2891 (Gen. Div.), L Attiboudeaire v. Royal Bank of Canada, [1996] O.J. No.178 8

9 of action and a claim for general damages for breach of the Code in the same way that labour arbitrators can. A peculiar 30 year old precedent from the Supreme Court of Canada would seem to prevent courts from finding liability for acts of discrimination and harassment on the part of employers other than as the basis for a constructive dismissal or as an independent actionable wrong to justify an award of punitive or aggravated damages. This anomaly does not apply in the context of the unionized workplace as labour arbitrators are required to apply the Code as part of their assessment of disputes under collective agreements. There is no principled reason why courts should not have the same obligation to interpret and apply human rights legislation including the duty to accommodate in circumstances where a wrongful dismissal action raises issues of employer liability for discrimination and harassment contrary to the terms of the Code. Recently, the Quebec Court of Appeal has questioned this anomaly and suggested that the Supreme Court should revisit the issue. 14 At present, however, it would seem that employees are required still to turn to the OHRC in order to enforce their human rights and to secure remedies for Code violations. This process is problematic especially having regard to the significant limitations of the Commission to consider and assess the volume of discrimination claims of disabled employees brought before it each year. Further, the Commission, which has carriage of all discrimination complaints brought before it, has a wide discretion not to consider or advance human rights complaints where an alternative forum exists to address wrongs done to the employee. For example, the Commission will routinely dismiss complaints in cases where a unionized employee is covered by a collective agreement which contains a grievance arbitration procedure. Where an employee brings an action for wrongful dismissal before the courts, the Commission may decline to act upon a complaint of discrimination and harassment by that employee until the court has ruled on the matter even though the court is presently limited in its ability to address the wrongs of discrimination and harassment against disabled employees. In the event that the Supreme Court of Canada has the opportunity to consider the case of Keays v. Honda, it may provide the Court with the opportunity to address this anomaly represented by the resilient 25 year old precedent of Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181 (S.C.C.) which afforded the OHRC and Board of Inquiry exclusive jurisdiction to determine complaints of discrimination and harassment and which precluded actions in the civil courts based upon discrimination. The duty to accommodate is fundamental to the equality, integration and participation of disabled employees in the workplace and litigation lawyers must be alive to its implications for injured 14 Cadieux v. Montreal, [2002] J.Q. No.363 (Q.C.A.) at para 78 9

10 workers and other disabled employees who seek to reintegrate themselves into the workforce in a manner that respects the limitations and restrictions of their disabilities and promotes their integration and participation in the workforce. Recent trends removing exclusive jurisdiction over human rights complaints from the OHRC and granting labour arbitrators, tribunals and the courts a more significant role in the development and application of human rights principles gives litigation lawyers a unique challenge and opportunity to address the needs and concerns of disabled employees in the work reintegration process. In order to meet this challenge, lawyers must be familiar with the key principles and strategies relevant to the accommodation of disabled employees in the workplace even where employers take the position that such reintegration is not practical or possible. 10 *Note on Author: Hugh Scher is a Toronto lawyer who practices civil litigation, labour, employment and human rights law with a focus on the rights of persons with disabilities. He serves as counsel to the National ME/FM Action Network, ME Ontario and the Fibromyalgia Society of Ontario and has represented dozens of individuals with Fibromyalgia and Chronic Fatigue Syndrome in disputes with long-term disability insurers, the Canada Pension Plan, employers and Revenue Canada. He is also counsel in the landmark case of Keays v. Honda where he obtained the largest employment award in Canadian history. Scher & De Angelis Professional Corporation Barristers & Solicitors Suite 210, 69 Bloor Street East Toronto, Ontario, Canada, M4W 1A9 Telephone (416) Facsimile (416) hugh@sdlaw.ca