Accommodation: Employee duty to disclose
Review of cases shows principles, results not always consistent
Oct 6, 2014
By Stuart Rudner
The subject of accommodation of disability is one that frequently confounds employers. On the one hand, most employers know they have a duty to accommodate disabilities, which are broadly defined, to the point of undue hardship.
Setting aside the challenge of determining what might constitute undue hardship, the other challenge employers frequently experience is employees do not provide sufficient information in order to allow the employer to assess whether accommodation is feasible.
In some cases, the issue facing the employer is they may suspect the employee is experiencing a disability, but the employee makes no request for accommodation at all, often even denying such a need when confronted.
In other cases, the need for accommodation is only raised by the employee after the employer imposes discipline, or dismisses the employee, as a result of alleged misconduct. At that point, the employer is left to wonder whether there is a legitimate need or whether the employee is simply attempting to avoid the consequences of their actions.
As I prepared the most recent update to my book on summary dismissal, You're Fired!, I reviewed several cases that related to these issues. Frustratingly for employers, the principles and results are not always consistent.
In Alphair Ventilating Systems Inc. and USW, Local 9074 – 06 (Bertudez), the grievor was dismissed as a result of having failed to report to work. By way of background, he had an extensive disciplinary history including previous failures to report to work without calling in. After he was dismissed, he claimed that his absences related to the fact he suffered from diabetes and heart disease, and the medications he was taking impacted his ability to attend at work.
However, the evidence was that he had never requested any form of accommodation in the past and the employer had no knowledge of what, specifically, the employee's medical issues were. In that case, the arbitrator confirmed that just cause for dismissal was established by the company and no duty to accommodate was triggered.
Conversely, in Cypress Health Region (SK LA), the issue also involved failure to report to work or provide notice that the employee would not attend. After accepting two shifts and then not attending, the employee was questioned on several occasions and gave often-changing and inconsistent explanations for what had happened.
Three months after termination, the employee raised the issue of cognitive impairment that required accommodation. According to the evidence, two years before the incident in question, the employee underwent a psychological examination of her cognitive abilities and ranked in the fourth percentile of people her age. The employer had no knowledge of this.
It was determined the grievor suffered from a disability. The question was whether the employer had a duty to accommodate this disability and, if so, whether it had done so to the point of undue hardship. In a decision that will be surprising to many, the arbitrator concluded that even though the employer was unaware of the disability at the time of termination, there was an obligation to accommodate the employee. As a result, the termination was overturned and a two-month suspension imposed in its place.
As many people that deal with employment lawyers will already know, the answer to many legal questions is "it depends." That is certainly the case in the context of the accommodation of disability.
Generally speaking, lack of awareness of a disability will relieve the employer of any potential duty to accommodate. As the arbitrator stated in the Alphair decision, "knowledge and control of personal health information rests entirely with the employee. It was up to the (employee) to furnish meaningful medical information if he needed some kind of accommodation."
In other words, the employee is responsible for providing the employer with sufficient information to put it on notice there is a disability that requires accommodation, and allow it to assess the possibility of providing such accommodation.
However, there is always risk, and no case is "open and shut." As I have written in the past, where employers suspect that an employee suffers from a disability, it is not wise to simply bury your head in the sand and ignore the issue.
For employees, it is usually best to disclose any need for accommodation. While every situation will depend upon its own particular facts, employees should not assume their employer will be aware of the need for accommodation, or that they will be able to defend any inappropriate conduct later on by raising the issue of disability.
Employees that genuinely need accommodation should work with the employer in order to assess how that accommodation can be achieved.
For employers, it is critical that all requests for accommodation be addressed appropriately and not ignored or trivialized. Furthermore, the potential need for accommodation should be considered before any action is taken that will be adverse to an employee.
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Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
. He can be reached at firstname.lastname@example.org