Are you accommodating enough? Mental Disability, the Duty to Inquire, and Medical Information

Are you accommodating enough? Mental Disability, the Duty to Inquire, and Medical Information

Fact Pattern

Fact Pattern Mary was recently hired as a skilled health care worker in a unionized workplace. Her work requires some physical labour and the performance of medical procedures which require attention to detail. Patient outcomes may be affected by her work. She passed probation, but her supervisors had some concerns about her skills and performance. They didn t formally address those concerns with her before she passed probation. Shortly after passing probation, Mary fell at work and hurt herself quite badly. Her supervisors questioned her WorkSafe claim, but it was accepted and she remained off work on wage loss benefits for a year and a half before returning on a graduated return to work program. The Employer did not do any independent assessment of Mary s ability to return to work or her accommodation requirements, relying entirely on WorkSafe s recommendations.

Fact Pattern The GRTW program did not go well. Mary complained that the work aggravated her physical injury and that she was in pain. Her performance was very poor, she was forgetful, took an excessively long time to complete her tasks, communicated poorly, and didn t seem to understand instructions. The Employer reviewed Mary s work since her return to work and decided to terminate her employment for poor performance. Mary grieved the termination of her employment, and the Union tells the Employer in the grievance process that it believes that Mary s performance was adversely affected by both her physical injury, which it states was not properly accommodated in the GRTW program, and by an undiagnosed mental illness which it suspects may have affected her performance.

Questions

Questions What could and should the Employer have done differently prior to terminating Mary s employment?

Questions What should it do now in response to the Union s statements in the grievance process?

Questions Assume the Employer denies the grievance, and the Union later provides expert evidence substantiating both that the GRTW failed to properly accommodate Mary s physical disability and that she was suffering from a mental illness which likely did affect her performance. That mental illness was aggravated by the initial physical injury, the Employer questioning the validity of her WorkSafe claim, and the termination of her employment. What are the consequences for the Employer? What should it do in response to the expert evidence?

The Duty to Inquire

The Duty to Inquire This fact pattern highlights the duty to inquire. The law is clear that an employer who is aware of facts which suggest that an employee s behavior may be the result of a disability is under a duty to inquire before taking any adverse action against that employee.

The Duty to Inquire In Gardiner v. Ministry of Attorney General, 2003 BCHRT 41, the Tribunal said the following about the employee s duty to inform and the employer s duty to inquire: It is well-established that the employee has a duty to bring to the attention of the employer the facts relating to discrimination: Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425 (S.C.C.). It is also a generally accepted principle that a respondent must know, or ought reasonably to know, that an employee is suffering from a disability before the duty to accommodate will arise. The obligation is normally on the complainant to communicate the nature of the disability to the Respondent: Mager v. Louisiana Pacific Canada Ltd., [1998] B.C.H.R.T.D. No. 36 Q.L. at para. 47. The Complainant is also obliged to participate in the efforts at reasonable accommodation. A Respondent s failure to make inquiries regarding the health of an employee before taking steps that adversely affect that employee s employment situation, where the Respondent has reason to suspect that a medical condition may be impacting in the employee s ability to work, has been found to be discriminatory in certain instances: Willems-Wilson v. Allbright Drycleaners, [1997] B.C.H.R.T.D. No. 26 (Q.L.); Martin v. Carter Chevrolet Oldsmobile, 2001 BCHRT 37; and Sylvester v. B.C. Society of Male Survivors of Sexual Abuse, 2002 BCHRT 14. It is important then to determine what was known by the Respondent regarding the Complainant s disability... [at the time relevant to the complaint] (para. 162).

The Duty to Inquire More recently, the Tribunal helpfully summarized the law with respect to the duty to inquire in Rezaei v. University of Northern British Columbia and another (No. 2), 2011 BCHRT 118 (CanLII) (judicial review filed but not yet decided). Rezaei demonstrates that the question of whether an employer (and in that case, a trade union representing an employee) is under a duty to inquire must be assessed on a case by case basis. In Rezaei, the Tribunal concluded that there was nothing in the complainant s communications with his colleagues and superiors that is so far out of the norms of communication among individuals holding firm views on matters of dispute among them, or so indicative of distress, as to have put the respondents on inquiry whether Dr. Rezaei s behaviour was affected by a mental disability. In the result, the Tribunal dismissed the complaint as having no reasonable prospect of success.

The Duty to Inquire While an employer may be able to subsequently establish that an employee s behavior was not sufficient to put it under a duty to inquire, the decision to terminate an employee (or take other adverse action) in circumstances where their conduct suggests the possibility of a medical or psychiatric condition playing a role in that conduct is fraught with risk.

The Duty to Inquire Bertrend v. Golder Associates, 2009 BCHRT 274 (CanLII) demonstrates that risk. In that case, the employer terminated an employee s employment in circumstances where it was held it should have known or made inquiries with respect to the employee s mental health before it terminated her employment. The Tribunal stated: In my view, Golder had sufficient information to know, or to make any inquiries it felt necessary, about Ms. Bertrend s depression both at the time it made the decision to withdraw the Surrey Offer and also when it terminated her employment Golder cannot avoid the reality of Ms. Bertrend s disclosure by rushing to terminate prior to the receipt of medical documentation, when it knew Ms. Bertrend was seeing a doctor, and then assert the lack of medical documentation as a defence. In the circumstances, the lack of medical documentation at the time of disclosure or termination does not act as a shield against this complaint. Ms. Bertrend s disclosure of depression was sufficient to trigger a duty to inquire on the part of Golder if it felt it needed medical confirmation: Martin.

The Duty to Inquire In that case, the employer s failure to inquire and rush to terminate resulted in substantial damages for lost wages and injury to dignity.

The Duty to Inquire The duty to inquire is more frequently recognized and applied by human rights tribunal, but has also been applied by arbitrators: see, e.g., Canada Bread Co. v. Bakery, Confectionery Tobacco Workers, and Grain Millers International Union, Local 468 (Dismissal Grievance), [2011] B.C.C.A.A.A. No. 154, and Toronto Community Housing Corp. v. Toronto Civic Employees' Union, Local 416 (Bower Grievance), [2012] O.L.A.A. No. 622. In the latter case, the following was stated in response to the union s argument that the employer discriminated in asking an employee whether he might have ADHD:

The Duty to Inquire Apart from other issues, the Code requires an employer to accommodate the needs of those employees with disabilities. An employer cannot begin to consider accommodating an employee's disability unless it knows about it. Many employees are hesitant to share with their employer the fact that they have a disability - a common example is an unwillingness by an employee to admit being an alcoholic or drug addict. I cannot think that the Legislature intended that an employer, who is required to accommodate an employee with a disability, is prevented from asking an employee, about whom the employer has concerns related to the quality of work, whether that employee might have a disability. This is especially the case if the employer sees behaviour that suggests there may well be a disability which is causing the work performance issues. I cannot think that the Legislature intended the Code to prevent an employer from raising legitimate concerns about an employee's health. It follows that I cannot find that the mere fact of Ms Duplessie's inquiry about whether the grievor had ADHD amounts to discrimination under the Code.

Seeking Medical Information

Seeking Medical Information An employer will be entitled, and as the duty to inquire cases show, even obligated to ask questions and seek medical information from an employee in circumstances where their work-related conduct, which would otherwise be cause for discipline, may be related to a medical condition. This is a specific instance of the broader principle that an employer is entitled to seek relevant medical information necessary to comply with its duty to accommodate: Kerr v. Boehringer Ingelheim (Canada) (No. 4), 2009 BCHRT 196 (CanLII), 2009 BCHRT 196 at para. 485; Fitkall v. Great Pacific Industries (No. 4), 2006 BCHRT 113. Suggest that in such as case the employer ask the employee if they have a medical condition which may relate to conduct in question. In a unionized environment, the union should be an integral part of this discussion.

Seeking Medical Information Employee may deny any medical condition. If so, then employer is likely entitled to proceed on that basis. However, should proceed with caution if the employee denies a medical condition in the face of evidence to the contrary. If employee acknowledges a relevant medical condition, or is open to medical investigation being undertaken, then seek medical information. In the first instance, this should be from the employee s own physician, and if this is not forthcoming or is inadequate, then from an independent physician.

Seeking Medical Information Medical information sought must be limited to what is reasonably necessary to the employer s legitimate work-related needs. In order to protect employee privacy, the least intrusive means of obtaining reasonably necessary medical information must be employed: see Re Telus Communications Co. and Telecommunications Workers Union (2010), 192 LAC (4th) 240 (Lanyon); and West Vancouver (District) v. West Vancouver Fire Fighters' Union, Local 1525 (Sick Leave Grievances), [2012] B.C.C.A.A.A. No. 166 (Hall). An employer will not fulfill the duty to accommodate where it simply relies, without making its own inquiries as appropriate, on the determinations of third parties such as WorkSafe or LTD insurers: Datt v. McDonald's Restaurants of Canada Ltd., [2007] B.C.H.R.T.D. No. 324; 2007 BCHRT 324.

What are key insights derived from this session and how can you implement them in your workplace?

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