When an employee with a disability was keen to come back to work, her employer should have investigated its options for accommodation rather than relying on limited information from a benefits provider, the British Columbia Court of Appeal has ruled.
Lynda Kerr was a pharmaceutical sales representative in B.C. for Boehringer Ingelheim Canada (BIC), a German-owned supplier of pharmaceuticals based in Burlington, Ont. The position involved a lot of time on the computer and a significant amount of driving.
BIC hired Kerr in 1996 and she worked for three years until 1999, when she was diagnosed with cataracts. Doctors told Kerr the cataracts would cause her vision to deteriorate to the point that, within two years, she would hardly be able to see. As a result, in May 2000, Kerr told BIC she wanted to resign. BIC advised Kerr to apply for disability leave, which she did.
Over the next few years, Kerr’s vision deteriorated but not as badly as doctors originally thought. She wrote to BIC in February 2001 indicating she could perform light duties or part-time work, but BIC said nothing was available.
In September 2002, Kerr’s disability insurer, Canada Life, told her it was going to terminate her benefits because she was capable of working in some occupation or another, if not her regular position. BIC was notified and it learned Kerr wanted to return to work, though it didn’t take any action.
Kerr tried to get an extension of her disability benefits, including rehabilitation services to prepare her for a possible return to work. In June 2004, her doctor said it remained a possibility for Kerr to return to work, but BIC did nothing at the time.
Kerr continued to maintain a functional level of vision and was evaluated in June 2006. It turned out she was able to perform the duties of her job with little restriction and she could drive, read and write with limited ability. BIC provided Kerr with a standard return-to-work plan without consulting her but she refused it as she had already filed a human rights complaint. On Sept. 20, 2006, while the complaint was still being heard, Kerr resigned from BIC.
Employer’s failure to act discrimination: Tribunal
BIC’s failure to do anything when it found out Kerr wanted to return to work and when she was preparing for a return constituted prima facie discrimination based on her physical disability, found the B.C. Human Rights Tribunal. When the company found out she wanted to come back to work and was able to do so, BIC’s duty to accommodate was triggered and it had an obligation to work with her on a return-to-work plan, said the tribunal. However, despite evidence Kerr was able to perform limited work, BIC didn’t investigate further. It also relied on the limited information it received from the benefits provider regarding her disability benefit eligibility, rather than finding out the whole story, said the tribunal. BIC was ordered to pay Kerr for lost wages from the end of her disability benefits in November 2003 to the present.
BIC appealed the decision to the B.C. Supreme Court, arguing the tribunal didn’t properly apply the legal test for discrimination where an employee is disabled and receiving long-term disability benefits. In addition to determining if Kerr had a disability and received adverse treatment, and if the disability was a factor in the adverse treatment, BIC claimed there needed to be objective evidence Kerr’s disability enabled her to work before there was discrimination.
It also argued that, even though it was aware of Kerr’s desire, she had a responsibility to notify the company she wanted to work and provide the evidence of her ability to work. BIC also said the information from the benefits provider indicated she was unable to do her job.
The B.C. Supreme Court dismissed the application for judicial review, upholding the tribunal’s findings. So BIC appealed again to the B.C. Court of Appeal.
The B.C. Court of Appeal dismissed BIC’s appeal, finding the tribunal’s assessment of the test for prima facie discrimination was valid. The appeal court found BIC’s argument “erroneously puts the onus/responsibility on Ms. Kerr to figure out for herself that she can work despite her disability and then present her findings to the employer (thereby saving the employer the responsibility of this assessment at the second accommodation analysis stage).”
The Court of Appeal found it was not the employee’s responsibility to make the determination about her ability to work and the next steps because she may not know of the duty to accommodate nor the extent to which the employer must follow it. Therefore, the tribunal applied the correct assessment for discrimination by keeping it to the three-part test: Kerr had a disability, she received adverse treatment and her disability was a factor in the treatment.
The appeal court also agreed with the tribunal and Supreme Court that the information from the benefits provider was not sufficient to determine whether Kerr could work.
“I think it is simply a common sense proposition; if a previously disabled employee says they wish to return to work and the employer claims to have only information that suggests the employee cannot perform the jobs available, the employer can reasonably be expected to seek clarification as to the employee’s actual condition,” said the Court of Appeal.
“BIC’s conduct was arbitrary because it assumed Ms. Kerr could not perform the job because of her disability, without seeking clarification as to what she was capable of doing.”
For more information see:
•Kerr v. Boehringer Ingelheim (Canada) Ltd./Ltée, 2011 CarswellBC 1391 (B.C. C.A.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.
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