‘Many employers wouldn’t go as far as this employer did, but it was working hard to get this individual back to work,' says lawyer
“Employers are not required to accommodate every single request that an employee has - it's not about the employee's choice, it’s about what they reasonably require based on medical evidence on restrictions.”
So says Laura Dunnigan, an employment lawyer at Mathews Dinsdale in Calgary, after the Alberta Human Rights Tribunal dismissed a worker’s complaint of alleged workplace discrimination on the grounds of mental and physical disability, because there was no evidence of an adverse impact on the worker.
The worker was employed for the Alberta Ministry of Community and Social Services in the department managing the Assured Income for the Severely Handicapped (AISH) program. She had a medical condition that affected her ability to regulate heart rate and blood pressure.
After a lengthy leave of absence, the worker began a return-to-work plan in 2018. Her doctors provided the scope of her accommodation requirements in a letter dated July 18, including driving restrictions, limited walking, and no lifting or squats. The letter also listed some suggested measures to help the worker, including parking close to the building entrance, a private workspace where she could lie down, and a lock box for her medications.
The Ministry gave the worker a specific cubicle upon her return and she was assigned to a lower position than she had previously worked, but her pay was supplemented at the highest position at which she had worked. She was later promoted to the position of AISH adjudicator to cover for someone on leave, moving to a different cubicle.
Both cubicles had space for the worker to lie down, as was suggested in the accommodation letter. The Ministry also provided recommended accommodations such as a close parking spot and a lock box for her medications.
Accommodation measures
There were two aspects to the doctor’s letter - mandatory accommodations and some helpful accommodations that could assist the worker in transitioning back into the workforce, says Dunnigan.
“The employer in this case met all of the mandatory accommodations and almost all of the non-mandatory accommodations as well,” she says. “And the employer took multiple steps to inquire and work with the worker to determine whether or not it could find better or alternative accommodations that would satisfy her.”
However, the worker wasn’t happy with her new cubicle and said that she needed to move back to the previous one. She complained that the new cubicle was noisy and she wasn’t pleased with the physical layout.
However, the worker’s cubicle met the accommodation requirements outlined in an accommodation letter. When the worker asked to return to her previous cubicle, the Ministry asked for a doctor’s letter stating she needed a different workspace, as it couldn’t let employees choose their preferred locations without justification. The worker didn’t provide one.
The worker requested other accommodations such as a shorter day with a shorter lunch hour and an area where she could take a private break. The Ministry told her that she could ask for a modified work agreement by completing a form, but she didn’t fill it out.
Additional medical information
The Ministry and a disability management consultant (DMC) continued to communicate with the worker through email, but the worker didn’t provide any further medical information. The DMC eventually referred the worker to a third-party service to assess any additional medical accommodations, saying that it would pay the fee. However, the worker didn’t fully engage with the service or fill out the necessary forms for modified working hours or working from home.
The worker had a medical incident at work and an ambulance had to be called. She told a co-worker where to find her medical information but she grew concerned that, when the paramedics were given her confidential medical information, it was revealed to other employees.
Afterwards, the Ministry conducted an investigation about how to keep the worker safe and where to best keep her medical information. The worker signed a form indicating that no corrective action was required.
The worker also had issues with her training, as most of it was done through remote assistance tools. The worker said that her medical condition affected her cognitive function and in-person training was more effective for her.
The employee for whom the worker was covering returned from leave and the worker was reassigned to the lower position, but she remained at the higher pay level.
Discrimination complaint
The worker went back on medical leave and filed a human rights complaint alleging discrimination on the protected ground of mental and physical disability. She alleged multiple failures in accommodation by the Ministry - including her assignment to an undesired cubicle, perceived demotion, reduced financial benefits, lack of compliance with medical restrictions, and inadequate responses to the incident involving her medical information. She also raised concerns about improper training and an unsafe work environment, the latter in relation to an incident in which a co-worker closed the blinds around her cubicle to avoid glare on her computer and was allegedly rude to the worker.
The tribunal referred to the three-part test for prima facie discrimination established by the Supreme Court of Canada – the worker has a characteristic protected under the Alberta Human Rights Act, she suffered an adverse impact, and the adverse impact was related to the protected characteristic.
The tribunal found that the evidence indicated that both cubicles met the worker’s medical needs and, although the worker preferred one over the other, the evidence showed they were nearly identical. Preference alone doesn’t constitute an adverse impact, said the tribunal.
Regarding claims of demotion and financial loss, there was also no evidence to support these assertions, the tribunal said, pointing out that the worker was promoted temporarily and returned to her base position when the original occupant resumed their duties. At all times the worker was paid at the higher level, so her income and pension benefits weren’t affected, the tribunal said.
As for the worker’s allegation that the Ministry failed to comply with her medical restrictions and refused to consider alternative accommodations, the tribunal found that all mandatory accommodations identified in her doctor’s letter were met. Additional recommended accommodations from the letter were also provided, and when the worker requested more, the Ministry remained open to them, said the tribunal, noting that the worker didn’t obtain additional information or fill out the necessary paperwork.
Lack of co-operation
The tribunal also pointed to the fact that the worker didn’t adequately engage with the third-party service to assess workplace accommodations. Despite being invited to participate, she didn’t follow through, leading the tribunal to determine that the worker failed to co-operate “in any way in respect of her requested accommodation.”
In relation to the workplace medical incident, the tribunal found that the Ministry conducted an investigation and attempted corrective action, and the worker signed a form indicating no further action was required.
The tribunal also dismissed the worker’s allegations of inadequate training and an unsafe work environment, as the worker presented no evidence supporting her need for in-person training or that the perceived slights by co-workers, such as the closing of blinds, contributed to an unsafe workplace.
The fact that the Ministry did everything with documentation significantly helped its defense, according to Dunnigan.
“It had lots of documentary evidence showing the lengths to which it was prepared to go to find reasonable accommodations, all with the view of getting this person back to work,” she says. “It had emails, letters, and evidence to show that they were meaningfully participating in this process with the goal to get this person back to work.”
Accommodation a two-sided process
The tribunal found that the Ministry was a willing participant in the accommodation process, but the worker didn’t live up to her obligation.
All of the evidence essentially demonstrated an unwillingness by the worker to participate in the two-sided process of accommodation, says Dunnigan. “Accommodation is a two-way street – the employer has an obligation to investigate accommodation, and the employee has an obligation to participate and provide the information necessary to justify their accommodation.”
The tribunal determined that the worker had a protected characteristic, but she didn’t suffer an adverse impact related to her employment. The complaint was dismissed.
“The employer not only met the required accommodation, it documented really well its communications with the worker and kept highlighting its openness and willingness to work with the worker to find reasonable solutions that would get her back to work successfully,” says Dunnigan. “Many employers wouldn’t go as far as this employer did, but it really set them up to demonstrate that it was working hard to get this individual back to work.”
“If both sides don't come to the table, it will fail, and if it fails because the employee doesn't come to the table, the employer is not going to be found liable under human rights legislation.”
