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EMPLOYMENT LAW
Jun 2, 2014

When dishonesty overrides disability

An employee misleading the employer on a disability can free employer of the duty to accommodate
    

By Jeffrey R. Smith

It's well-known that Canadian employers are legally required to accommodate employees who have disabilities. If an employee faces adverse treatment or loses her job as a direct result of a disability, this amounts to discrimination and the employer faces the prospect of legal liability — unless the employer can prove having the employee work is undue hardship and is too much of a burden.

While some employers may view the accommodation process as an ordeal and regard it as a pain, some are happy with doing their best to make sure a valued employee is able to remain part of their staff. Either way, when faced with a disabled employee, an accommodation plan must be developed and all options for accommodation investigated. If anything, such a plan can reveal whether an employee can actually be accommodated. An employer can’t prove undue hardship without proving it exhausted all avenues.

However, the process isn’t one-sided. The employee has a responsibility to ensure the employer has as much information as necessary to determine what it needs to do to accommodate. Ongoing communication and co-operation in developing a plan is important for both sides. And the employee has to be honest about her condition.

An Ontario newspaper found itself having to accommodate one of its reporters when she seriously injured her ankle in a skydiving accident and required multiple surgeries that affected her mobility and left her with frequent pain. She said she was unable to drive or take public transit. The newspaper accommodated her by providing her with a laptop and allowing her to work from home. She was also assigned stories that only required her to call people rather than travelling around to different locations.

After some time, the newspaper needed the reporter to do more general assignment reporting. Since she was at maximum recovery, it asked her to return to the office to work. She was still not required to travel — other reporters took care of any requirements to go out in the field — and she was able to stay at her desk.

The reporter made no bones about her disability in the office, as she hobbled around on two canes and frequently mentioned the pain she was in and the heavy drugs she had to take. However, the newspaper heard rumours about the reporter’s activities outside the office and it conducted surveillance on her, discovering she could drive and move around much better than she appeared to at work.

The reporter couldn’t explain the difference between her abilities in and outside of the office and the newspaper fired her for misleading it about her functional abilities. An arbitrator upheld the termination, finding the employee clearly lied about her abilities to avoid more onerous assignments. Even though she did have a disability, it was her responsibility to co-operate with her employer to reach appropriate levels of accommodation.

I’ve mentioned before that employee dishonesty is often considered the worst type of employee misconduct, as it breaches a level of trust that could be essential to the employment relationship. Even in circumstances where an employee has a disability, the need for honesty and co-operation in the employment process can override the employer’s duty to accommodate.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.
    
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