Accommodation efforts of both employer and employee lead to impasse

A British Columbia public service employer has lost its bid to dismiss an employee’s complaint relating to a lack of accommodation because it said the employee didn’t co-operate in the accommodation process.

Kathleen Michaud was a policy and legislative analyst for the B.C. Ministry of Finance. Hired in 2006, she produced and reported on the analyses of various provincial policies and legislation. Her role involved a substantial amount of independent judgment in evaluating policies and making recommendations to staff and members of government.

In August 2016, Michaud was diagnosed with a rare autoimmune disorder. Her physician gave her a medical certificate that stated Michaud was experiencing pain and severe fatigue that affected her productivity and concentration. It also said that her symptoms were unpredictable and her prognosis was uncertain. The physician recommended modifications to Michaud’s work, including a later start and finish time because her symptoms tended to improve later in the day and any opportunities for her to work from home.

About one month later, Michaud met with her supervisor to discuss the medical certificate. The ministry agreed to allow Michaud to work from home for two days per week with a modified work week. Michaud would work from 9:40 a.m. to 6 p.m. each day, with a flex day every other Friday.

Michaud worked the modified schedule, but soon the ministry began to have concerns about her work performance. At her annual performance review in May 2017, her supervisor pointed out that she had missed two meetings in early May and there were inconsistencies in her work. The supervisor suggested that Michaud should have been off work on the ministry’s short-term illness and injury plan (STIIP) — which could be applied to medical leaves of up to six calendar months — at the time she missed the meetings. On the performance review, the supervisor wrote that he wasn’t sure if the cause of the problem was “performance related, or whether it is caused by health issues.”

Michaud disagreed that there were problems with her work, but she acknowledged that her focus and productivity were affected by her disability.

That same month, Michaud obtained two more medical certificates stating that the modified schedule hadn’t resolved her issues. Her physician reiterated that her symptoms were worse in the morning and better in the evening, recommending that she start work at 11 a.m. and work from home four days per week. The medical certificates also recommended that she be able to stretch and move constantly and an occupational therapist should be included in creating a performance plan.

Accommodation request involved working late

Michaud’s supervisor suggested that she go on long-term disability (LTD) leave or STIIP but otherwise needed to perform her duties. The ministry had concerns about an employee working from home for most of the week outside of operational hours and requested additional information about Michaud’s restrictions and limitations to determine if it could accommodate her in the office.

A doctor performed a fitness-for-work-assessment on July 27. The assessing doctor — who had not heard of Michaud’s condition and had to look it up — said that she could not recommend accommodation because the symptoms for the condition were “self-reported” and referred Michaud for an independent neuropsychological assessment.

Michaud said she would only agree to the independent assessment if temporary accommodation began immediately, the exam times would be either adjusted to assess her afternoon performance or not be used in place of her medical certificates, and if accommodation wasn’t recommended she would file a grievance for privacy breaches related to the assessment.

The ministry didn’t agree to the conditions and concluded that Michaud declined to participate in the independent assessment. It withdrew the offer of specific accommodation and offered accommodation inline with the branch’s operations — two days working from home and ending at 6 p.m. It also noted that it would seek further information to assess accommodation requirements.

Michaud submitted a new medical certificate on Sept. 13 reiterating her specific accommodations and recommending two weeks off work. Further exchanges ensued, with the ministry understanding that Michaud could be cleared to work full-time with no modifications on Oct. 2 by taking sick days when needed. Michaud said she was only cleared to return with the specific accommodations, but the ministry again said she could only work modified hours within the hours of operation — 11 a.m. to 6 p.m., not 7 p.m.

An independent medical examination (IME) was scheduled and then cancelled when Michaud felt was an unnecessary invasion of her privacy. Ultimately, the ministry determined that it needed “a current objective medical assessment regarding her medical limitations and restrictions” but Michaud was refusing to participate in the accommodation process. It provided her with an LTD benefits application and ended her STIIP benefits on Dec. 27.

In July 2018, the ministry advised Michaud that it was still open to her returning with reduced hours and workload pending further medical information. Michaud responded with conditions that she return to full-time employment with accommodation, get transferred or promoted to a location that allowed her to work from home five days a week, and get a different supervisor. At that point, she would be willing to consider an independent assessment.

Michaud filed a human rights complaint alleging discrimination on the basis of physical disability. The ministry applied to have her complaint dismissed on the basis that it had no reasonable prospect of success.

The tribunal noted that after receiving the first medical certificate in August 2016, the ministry proposed the modified schedule with Michaud starting and finishing later in the day and working from home when the opportunity arose. This fulfilled its duty to accommodate at that time and the May 2017 performance review reflected legitimate concerns with no discipline associated with them, said the tribunal.

There was no evidence the specific accommodation requested would cause undue hardship.

Further duty to accommodate

The tribunal found that the subsequent medical certificates triggered an additional duty to accommodate and Michaud was off work for an extend period due to her symptoms, resulting in “disability-related barriers in her employment.”

While the ministry argued that Michaud didn’t co-operate in the accommodation process because she didn’t provide additional medical information that it requested, the tribunal found that the ministry initially tried to pursue the information through an IME rather than through her own doctor, which was strange because there was no evidence that the specific accommodation outlined in the medical certificates would cause undue hardship, said the tribunal.

The tribunal also found that the medical certificates indicated that Michaud could work with modifications, so it wasn’t reasonable to prevent her from returning to work at least temporarily while full accommodations were negotiated.

The tribunal determined that although Michaud put up some obstacles of her own, the ministry di not take all reasonable steps to try to reasonably accommodate Michaud from May 2017 onwards. As a result, the ministry did not establish that Michaud’s human rights complaint could not succeed. The tribunal dismissed the ministry’s application to dismiss and allowed it to proceed to a hearing.

For more information, see:

• Michaud v. BC Government and Service Employees’ Union and another, 2021 BCHRT 115 (B.C. Human Rights Trib.).