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Getting the ball rolling on accommodation

Whose responsibility is it to get things started?

By Jeffrey R. Smith

You can’t have accommodation without communication.

That’s one of the basic principles when it comes to an employee with a disability that hampers her ability to do her regular job. Most employers are — or should be — familiar with the concept of the duty to accommodate. If it’s at all possible to keep an employee working through modified duties or in a different position, an employer is legally obligated to investigate all options to do so, as long as it doesn’t significantly harm the employer’s business and is reasonably feasible.

Failure to do so will likely result in a charge of discrimination, as disability is a protected ground under human rights legislation, as is family status, age, sex, place of origin and others.

But in order for an accommodation plan to be set in motion, the employer and employee have to work together. If the employer is aware of the need for accommodation, it must investigate options. On the other hand, the employee is obligated to let the employer know if accommodation is necessary through medical documentation and do her part to work out a solution. But whose responsibility is it to get the ball rolling?

A national pharmaceutical company recently had to pay several years’ worth of compensation to a salesperson in British Columbia who had been off work with cataracts. After a couple of years, her vision wasn’t as bad as expected and she told the company she could do some limited work. At the time, the company didn’t have any such work available.

However, one year later, the benefits provider cancelled her benefits because she was able to work in some capacity. The employer was notified of this and was aware she wanted to come back, but it did nothing at the time. It eventually gave her a return-to-work plan without consulting her after a medical evaluation pronounced her fit to work. However, by that point, she had filed a human rights complaint.

The employer was found to have discriminated against the employee because it acted like it didn’t believe she could come back to work and didn’t make any inquiries, despite the fact it was aware of her desire to return and her benefits had been discontinued. Though it argued it was the employee’s responsibility to formally notify the employer of her ability to work, a tribunal and appeal court found once it was aware of her positive developments, it was obligated to investigate accommodation options. Failure to do so was discrimination.

On the other hand, employees have lost discrimination cases because they didn’t do their part in the process. For example, last year the B.C. Labour Relations Board found an employer was entitled to terminate an employee who had respiratory problems and demanded ventilation improvements. The employee refused the employer’s requests for medical documentation and an evaluation and refused to show up at work until improvements were made. The employee was considered to have abandoned his job and refused to do his part in the accommodation process.

So both sides have a part to play in the accommodation process. And it appears, if the employer has any awareness of the need for accommodation, it must take the next step. But should it be obligated to get things started if the employee hasn’t come directly to it with the request? How can the employer know how to approach the situation if the employee doesn’t lay her cards on the table?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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