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Accommodating the sick

Employers don’t have to accommodate short-term, common illness – but should they?

By Jeffrey R. Smith

As much as it may feel like a pain to employers, the duty to accommodate is a fact of life in employment law matters. Human rights legislation stipulates various grounds from which people are protected from discrimination in any circumstances including employment.

If an employee’s work interferes with one or more of those protected grounds, the employer has a duty to determine whether it can modify the employee’s circumstances at work to eliminate that interference.

While sometimes employers must make accommodations for employees’ religious beliefs — such as offering different holidays or modifying dress codes — the most common type of accommodation employers face is probably when it comes to disability, whether it stems from a permanent handicap or a temporary injury. However, it may come as a relief to employers that when an employee is facing medical problems, it doesn’t automatically mean accommodation is required.

Late last year, the Ontario Human Rights Tribunal heard a complaint from a massage therapist who said the province’s governing body for the industry, the College of Massage Therapists of Ontario (OSCE), failed to accommodate a disability. It claimed disability was a bout of what she thought was the flu and was later diagnosed as strep throat, which caused her to miss an annual mandatory training that was necessary for her to be an examiner to evaluate new massage therapists seeking certification. The therapist claimed the OSCE could have provided her with individual training to accommodate her illness.

The tribunal agreed with the therapist that the OSCE could have provided such training without too much difficulty, but disagreed with her that the OSCE was required to do so. It found ailments such as the flu and strep throat were “common, transitory ailments” that weren’t protected under the human rights code. Such illnesses did not set people apart from society and lead to discrimination and to require accommodation of them was not within the intentions of the code, said the tribunal: Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960 (Ont. Human Rights Trib.).

Illnesses such as the flu strep throat are relatively common, and one can’t really say they lead to grounds for discrimination. However, they can be pretty serious for someone who contracts them and it’s difficult to argue an employee who has either probably can’t work at some point during the course of the illness. Indeed, that’s why sick days — or short-term disability in more serious cases — exist. But if the employee misses something important that can harm her employment opportunities, such as training for another position as in the above case, doesn’t that set her apart in some way? In such circumstances, the illness is setting the employee apart from other employees who can take advantage of the opportunity because they’re not sick.

On the other hand, accommodation can be difficult enough for employers sometimes and to have to accommodate every employee who misses something because of an illness might turn out to be undue hardship in itself. What’s the best way to approach circumstances where an employee has a serious, but relatively short, illness and misses professional opportunities?

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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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