Court of Appeal upholds finding that employer had to get more info to help employee return
A national company should have investigated its options for accommodation rather than rely on limited information from a benefits provider on a disabled employee’s ability to come back to work, the British Columbia Court of Appeal has ruled.
Lynda Kerr was a pharmaceutical sales representative in British Columbia 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 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 barely be able to see. In May 2000, Kerr told BIC that she wanted to resign. BIC advised Kerr to apply for disability leave.
Vision didn’t deteriorate as badly as expected
Over the next few years, Kerr’s vision did deteriorate, but not as bad 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 to a certain extent, if not her regular job. 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 benefits, including rehabilitation services to prepare her for a possible return to work. Her doctor indicated in June 2004 that it remained a possibility for Kerr to return, but BIC did nothing.
Kerr continued to maintain a functional level of vision and in June 2006, she was declared able to perform the duties of her job with little restriction — she could drive, read and write with limited ability. BIC provided Kerr with a standard return-to-work plan without consulting her and she refused, as she had already filed a human rights complaint. On Sept. 20, 2006, while the complaint was still being heard, Kerr resigned from BIC.
The B.C. Human Rights Tribunal found BIC’s failure do anything when it found out she wanted to return to work and later that she was preparing for a return constituted prima facie discrimination against Kerr based on her physical disability. When it found out she was able and wanted to come back, the employer’s duty to accommodate was triggered and it had an obligation to work with her on the return-to-work plan, said the tribunal. However, despite evidence that Kerr was able to perform limited work, it didn’t investigate further. It also relied on the limited information it received from Canada Life 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 that the tribunal didn’t properly apply the legal test for discrimination where an employee is disabled and receiving long-term disability benefits. BIC claimed there needed to be objective evidence that Kerr was able to work before there was discrimination. It also argued that even though it was aware of Kerr’s wish, she had a responsibility to notify it that she wanted to work and provide evidence of her ability to work. The company also said the information it had from Canada Life was that she was unable to do her job.
The court dismissed the application for judicial review, upholding the tribunal’s findings. BIC appealed again to the B.C. Court of Appeal.
Onus not on employee to start accommodation process: Court
The Court of Appeal dismissed the 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 test 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 make the determination whether Kerr could work.
