Reasonable efforts 'what standard requires': lawyer
“Employers need to feel confident that while they do have an obligation to do their best and make reasonable efforts, the accommodation process doesn't need to be perfect. Employers just need to offer options to employees requesting accommodation, and those options don't necessarily need to be perfect as long as the employer is making reasonable efforts.”
So says Nathanael Bowles, an employment lawyer at McLennan Ross in Calgary, after the Alberta Human Rights Tribunal found that a company met its duty to accommodate a worker’s family status by providing an option to which the worker didn’t respond.
“The employer certainly was not perfect in in this case and didn't respond to all of the employee’s different requests,” says Bowles. “However, they did engage in reasonable accommodation efforts, which is what the standard is requires.”
STD benefits during parental leave
The worker was hired by CitiFinancial Canada, a personal lender and retail financier, in 2006. He left in 2009 and was rehired in June 2011 to be a branch account executive at an Edmonton branch.
In August 2013, the worker went on parental leave. During the leave, he started experiencing symptoms of anxiety. He provided a medical note in June 2014 stating that he had been diagnosed with a panic disorder and was unable to return to work.
The worker went on short-term disability (STD) benefits. In the summer of 2014, his doctor cleared him to return to work, but his daughter was born premature and he needed to go on parental leave until Sept. 8.
As the worker’s return to work neared, CitiFinancial informed him that he would be relocated to a different branch and he would also be working remotely for another branch temporarily. The worker found remote work difficult.
Request for part-time hours
In April 2015, the worker requested part-time hours on a temporary basis due to his childcare obligations. He pointed out that he had experienced “a long-term sickness” in 2014 and he was having difficulty managing his childcare obligations and work demands. The company didn’t respond.
The worker emailed management on May 19 to say that he could not come to work for a few days due to his sickness. He once again asked for part-time hours to meet his childcare obligations or, alternatively, to either work from home or at a local branch so he wouldn’t have to work remotely. CitiFinancial denied the request for “business reasons.”
The worker provided a medical certificate stating that he was unfit for work until June 5 for medical reasons. CitiFinancial told him that since he didn’t have any sick days left, he would have to make an STD claim.
CitiFinancial was fortunate that the worker raised his childcare issues and accommodation requests multiple times, as it sometimes didn’t respond in a timely manner, says Bowles.
“Employers should always make sure that they are actively engaged in accommodation requests when an employee raises a flag about issues,” he says. “Rather than waiting until a second or third instance to engage in the accommodation discussion, employers should work to respond to employees in those situations right away.”
Undue hardship is a somewhat subjective concept that must be assessed on a case-by-case basis, says an employment lawyer.
Employer counterproposal
CitiFinancial explained that it couldn’t offer part-time hours but suggested an arrangement in which the worker worked from 9 a.m. to 2 p.m. and then 5 p.m. to 8 p.m. so he could spend three hours with his children. However, this proposal was sent to the worker’s work email as he was about to go on sick leave, so there was a delay in the worker seeing it.
In June, the worker provided additional medical notes confirming his inability to work and a diagnosis of generalized anxiety disorder and panic attacks. He didn’t respond to the company’s counterproposal.
The worker applied for STD benefits, but the claim was denied. The third-party insurer told the company that the worker’s medical information didn’t support that he was functionally unable to perform the essential duties of his job, but it gave different reasons to the worker.
The worker appealed the rejection of his STD claim but was denied. One week after the insurer informed CitiFinancial that it was closing the worker’s file, the company terminated the worker’s employment effective Oct. 16.
The worker filed a human rights complaint alleging discrimination on the grounds of family status and mental disability.
An employer met its duty to accommodate, despite the worker’s disenchantment with the solution, the Ontario Human Rights Tribunal ruled.
Worker’s options contradictory
The tribunal found that the worker didn’t indicate how part-time hours would address his childcare demands or any details of his circumstances, which made it difficult to assess the reasonableness of CitiFinancial’s counterproposal. In addition, the worker’s suggested alternative of working from home contradicted the first proposal, as it was unclear how he could work full-time hours at home if he needed part-time hours to meet his responsibilities, the tribunal said.
The tribunal noted that the worker brought his mental disorder to CitiFinancial’s attention with a medical note in June 2014, but further communication related to his family circumstances, other than mentions of “long-term sickness” without elaboration and the June 2015 certificate indicating generalized anxiety disorder. Without serious issues with the worker’s performance, CitiFinancial did not have a duty to inquire about a mental disability, said the tribunal.
The tribunal also found that the original request for medical leave due to anxiety was made in June 2014, beyond the one-year limit for discrimination complaints outlined in the Alberta Human Rights Act.
“[The worker] was provided leave for his mental disability and in the accommodation process, the question was not whether or not he had a mental disability, but whether or not he could work part-time for his family status reasons,” says Bowles. “So, when the employee focused accommodation requests on the family status element, he essentially eliminated the mental disability issue from the discussion.”
The tribunal agreed that the worker’s family status involving his childcare obligations was protected under the act and his full-time hours created an adverse impact due to those obligations. In addition, the adverse impact was connected to his protected characteristic, meeting the three-part test for prima facie discrimination, said the tribunal.
Given the fact that the worker was discriminated against based on his family status, CitiFinancial had a duty to accommodate him to the point of undue hardship.
An employer’s duty to accommodate ended after an employee was on three years of sick leave without an expected return date, the Federal Court of Appeal ruled.
Reasonable standard
The tribunal found that the worker’s position was a full-time position, so the expectation of working full-time hours was a reasonable standard that was rationally connected to the job, meeting the first part of the three-part test to justify discriminatory conduct by the employer.
The tribunal also found that the attendance policy was in place before the worker began his employment and it was included in the employee handbook. There was no reason to question that the standard was adopted in good faith by CitiFinancial, meeting the second part of the test, said the tribunal.
As for accommodation, CitiFinancial made a proposal of split shifts that it believed would deal with the childcare issues brought forward by the worker. However, the worker didn’t respond to this proposal, so the company didn’t know if it couldn’t address the worker’s concerns, said the tribunal.
“What the employer did right was they provided the employee with an alternative form of accommodation as an option, when they proposed basically a split shift where he could work from 9 a.m. to 2 p.m. and then again from 5 p.m. until 8 p.m.,” says Bowles. “The employer engaged in the accommodation process and provided the complainant with a counterproposal.”
Employers are not required to hire extra staff or create ‘make-work’ assignments to accommodate someone, according to a lawyer.
Employer’s option reasonable
There was no indication that CitiFinancial was ending the possibility of accommodating the worker, but without meaningful engagement from him, a suitable arrangement couldn’t be reached, said the tribunal, adding that the counterproposal “might have been imperfect, but seemed reasonable for ensuring that the [worker] kept his job.”
For a standard to be reasonably necessary and to justify being discriminatory, courts and tribunals will look at the accommodation process and whether it's impossible for the employer to accommodate an employee without undue hardship, says Bowles.
“Where the complaint failed is that the employee did not fulfill his concomitant duty to collaborate during that accommodation process,” he says. “Accommodation is a multi-party inquiry and employees have obligations to do their part in facilitating the search for accommodation - in this case, the company provided a counterproposal and the worker just completely failed to respond, so the tribunal found that satisfied the employer’s obligation to demonstrate that it was a reasonable and justifiable contravention [of the code].”
The worker’s complaint was dismissed.
