"I'm sympathetic to the employer… But they could have potentially found some workaround,' says lawyer
“You can't just use a cookie-cutter solution [for accommodation] or draw a line in the sand saying, ‘We're not going to go there because it creates a safety issue.’ That's not enough, because in most cases there's a workaround available.”
So says Richard B. Johnson, co-founder and partner at Ascent Employment Law in Vancouver, after the BC Human Rights Tribunal dismissed a worker’s disability discrimination complaint as having no reasonable prospect of success – except for one part related to exposure therapy that the employer denied for safety reasons.
The worker was a correctional supervisor for BC Corrections at the Fraser Regional Correctional Centre (FRCC) in Maple Ridge, BC. In early 2016, he was violently assaulted by an inmate, which exacerbated post-traumatic stress disorder (PTSD) symptoms, and he had to go off work.
In June 2016, his psychologist recommended “prolonged exposure therapy.” The worker was successful in exposure therapy in the FRCC’s administration area, so the plan was to try it in the FRCC’s control room for one hour.
The control room was a restricted area where corrections officers supervised the facility with video screens. All movement by people and vehicles in the FRCC was monitored from there and it had no direct contact with inmates.
Accommodation request denied for safety reasons
However, the warden said that it was against policy to allow observers in the control room. There was a concern that the worker’s presence in the small control room would be a distraction for the operators, who were “busy all day with internal and external movements.”
In August, the assistant deputy warden (ADW) suggested that the worker do his one-hour exposure in the segregation unit or operations. The return-to-work (RTW) specialist also said that they could accommodate any other place but not the control room.
The psychologist stressed that the worker needed to have exposure to videos involving inmate violence and, if he became too emotional, he would remove himself from the area. The psychologist also said that he could be available nearby, but the FRCC reiterated its policy and refused.
The RTW specialist suggested that the worker could shadow a corrections supervisor in operations, but the worker would be in direct contact with inmates. He felt that the denial of exposure therapy in the control room was an attempt to end his career.
In October 2016, the psychologist stopped recommending exposure therapy and reported that it was no longer anticipated that the worker would return to his workplace because the employer was unable to facilitate an “appropriate exposure experience.”
An employer fulfilled its duty to accommodate by offering reasonable positions even though the worker declined them, the Alberta Human Rights Tribunal ruled.
Search for alternative position
The worker was accepted for long-term disability (LTD) benefits. The LTD approval triggered his right under the collective agreement to apply for support in returning to work in an alternative position outside of a correctional facility.
Throughout 2017, the worker discussed potential positions and job shadowing, but nothing could be pursued until he completed a work trial.
The worker completed his work trial in December 2017 and it was determined that he was restricted from working in jobs where lack of control was a safety concern and could trigger his PTSD. He had three options – resign with severance, retire if eligible, or be placed in another position. The worker chose placement in another position.
Between January and November 2018, the worker was formally referred to nine positions. Some were withdrawn due to concerns with his restrictions and some because he didn’t meet the minimum qualifications. When the job search expanded beyond his geographic location, he declined to interview because moving would have been an undue hardship on him.
In August 2018, an internal posting for a one-to-three-year rotation as a correctional supervisor with the Provincial Recruitment Team was circulated. The worker expressed interest, but he was screened out because he was disabled from his own occupation as a correctional supervisor.
On Nov. 9, with his LTD benefits set to expire, the worker accepted the option of resignation with severance.
With stress levels high, employers should be prepared to respond appropriately to mental health accommodation requests, say experts.
Discrimination complaint about accommodation
The worker filed a human rights complaint alleging that BC Corrections discriminated against him when it refused his request for exposure therapy in the control room. He also alleged that BC Corrections failed in its duty to accommodate him through the job search.
The tribunal noted that the worker was adversely impacted in his employment because of a disability and BC Corrections was obligated to take “all reasonable and practical steps to accommodate” him to the point of undue hardship. While BC Corrections had legitimate safety concerns about the potential distraction that the worker could cause in the control room, there was no evidence that it considered options to mitigate the risk, such as requiring the worker and other staff not to speak with each other.
In addition, BC Corrections didn’t seem to consider options suggested by the psychologist, the tribunal said.
The tribunal also found that some of the exposure therapy options proposed by BC Corrections might be unreasonable, due to possible exposure to inmates.
As a result, it was possible that BC Corrections did not take all reasonable and necessary steps to explore exposure therapy, leaving a possibility for the worker’s complaint in this regard to succeed, said the tribunal.
“I'm sympathetic to the employer in the sense that the worker wanted accommodation through exposure therapy in this control room and it's a huge safety issue if something goes wrong in there,” says Johnson. “But they could have potentially found some workaround where the safety concern of having somebody who is testing out their ability to work in the control room isn't jeopardizing safety, while at the same time giving a fairly realistic exposure process - some type of mock scenario that might have alleviated any sort of human rights issue.”
Only two in five HR professionals feel they effectively support worker’s mental health, according to a survey.
Worker didn’t abandon accommodation
The tribunal also found that the worker’s abandonment of seeking exposure therapy did not cause the accommodation process to fail on his end, as at that point his psychologist was no longer recommending it and two months had passed since his initial request.
However, the tribunal found that the worker’s allegation of discrimination in the job search process had no reasonable prospect of success. BC Corrections could not refer the worker until he completed his work trial and, once he did, he was referred for several positions that didn’t work out for various reasons. There was no evidence that these referrals weren’t legitimate or that the worker’s restrictions were misinterpreted, said the tribunal.
The worker didn’t have the evidence beyond conjecture to support his argument that there was a nexus between the adverse impact in the job search and his disability, says Johnson.
“It's still incumbent on a discrimination complainant to show that there is more than just, ‘I think that I was discriminated against in my job search,’” he says. “You don't have a right to look at all potential opportunities if there are things like bona fide occupational requirements - unless you can show that you were passed over for a fair opportunity to do those jobs, you're really not going to be able to get traction on your complaint.”
The tribunal dismissed the worker’s complaint of discrimination related to the job search process. However, the allegation that BC Corrections failed to accommodate the worker regarding his request for exposure therapy was allowed to proceed to a hearing.
A US survey found a direct correlation between poor employee mental health and the bottom line of their employers.
Creative solutions to accommodation
“You have to look at solutions, and you sometimes have to be creative and think outside the box,” says Johnson. “I think the [employer’s] failure to do that is what led down this path to a hearing [for the exposure therapy accommodation].”
In addition to thinking creatively for accommodation solutions, Johnson urges employers to document everything.
“Document all of the steps that you've gone through in the accommodation process and when considering the employee for other jobs - part of what helped [the partial dismissal of the complaint] is there wasn't evidence that they failed to do their duty when looking at the job search or that there was discrimination behind that.
“Keep written records and make sure that you're taking notes of what you've considered the employee for and the steps that you've taken.”
