The disability threshold
Is there a duty to accommodate a condition that doesn’t normally affect an employee’s ability to do her job?
Nov 19, 2012
By Jeffrey R. Smith
Accommodation is a fundamental part of Canadian employment and human rights law. If an employee has a disability that limits her ability to do the job, an employer must fully explore all possibilities of having that employee continue working with restrictions or revised duties.
Only if all options have been exhausted, and it becomes evident the employer can’t have the employee continue working without negatively affecting its business, can the employer dismiss the employee.
There are plenty of areas where employers can misstep. Some employers have been caught trying to prove undue hardship just to avoid accommodating an employee with a difficult disability. Others think they have cleared the undue hardship bar when they haven’t.
Just determining whether an employee actually has a disability that requires accommodation can be complicated.
An Ontario court recently heard the case of an Ottawa police officer who had been drummed out of the force following an incident where he was involved in a domestic dispute at his home. Earlier in the day, he had been forced to give up his weapon after failing a use of force test, and he went home angry. When four officers responded to a 911 call from his neighbour, the officer attacked them and threatened to kill two of them. He was charged with discreditable conduct and told to resign or be fired.
The officer claimed he had a history of anger management problems, as well as a tendency towards binge drinking and abusing of prescription drugs. He was later diagnosed with post-traumatic stress disorder arising out of traumatic events while on the job. However, he indicated he still felt capable of doing his job and when he filed a human rights complaint demanding accommodation, he claimed he should just get a demotion rather than dismissal.
However, the Ontario Superior Court didn’t think the officer suffered from a disability that prevented him from doing his job. Though the incident that led to his dismissal was made worse by consumption of drugs and alcohol, the main cause was the officer’s anger issues, said the court. Since the officer had worked for years with these issues, and even admitted he could still do the job, it wasn’t a disability requiring accommodation.
The officer may have had a drinking problem, a prescription drug abuse problem and anger management problems, but as long as they didn’t prevent him from performing his job, they weren’t considered disabilities by the court. They may have contributed to the outburst that ultimately cost him his job, but there were apparently no problems when he was actually doing his job.
If an employee has issues that are mainly affecting her personal life, but the employer is fine with her job performance, is it of any concern to the employer? If an employee has serious anger management issues for a long time but they don’t affect performance, should the employee be able to use them as a mitigating factor if she’s dismissed for anger-related misconduct? Should the consequences be any different for another employee with similar misconduct but no history of anger problems?
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 email@example.com or visit www.employmentlawtoday.com for more information.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.