Employee was unable to attend mandatory training due to short-term illness
An employee who had the flu and strep throat — which prevented her from taking training — did not have a disability requiring accommodation, the Ontario Human Rights Tribunal has ruled.
Candace Burgess was a registered massage therapist who designed and administered examinations for candidates seeking certification as registered massage therapists by the College of Massage Therapists of Ontario (OSCE). She performed these duties from 2004 to 2011 with one-year contracts renewed on an annual basis. A condition of each contract was to attend a mandatory training program for examiners held each year.
The training was mandatory for examiners because the certification exams involved different scenarios upon which candidates were assessed, and each year new scenarios were developed. Examiners attended the training to learn and understand the scenarios and ensure they all had a common understanding so candidates were consistently assessed and graded.
In 2012, Burgess once again signed a one-year contract to be an examiner. The two-day mandatory training session was scheduled for April 16 and 17, 2012. On April 15, Burgess contacted the OSCE to tell them she was in bed with the flu and may not be able to make it to the training. The next morning, she called again to say she wouldn’t be able to come, but she hoped to make it on the second day. Later that day, the OSCE contacted Burgess to inform her that since she was unable to attend the mandatory training, her 2012 contract was being cancelled.
Burgess filed a human rights complaint, arguing the decision to cancel her contract was an act of discrimination on the basis of disability and the OSCE had a duty to accommodate her. She pointed out there were two occasions when the OSCE allowed an examiner to miss the mandatory training: once when a replacement was needed quickly after the training had already taken place, and once when an individual the OSCE considered a strong potential examiner wasn’t available to take the training. In the latter situation, the OSCE provided individual training to the candidate.
Burgess pointed out she was diagnosed with strep throat the day after the training, which could be potentially serious if not treated.
The tribunal noted the OSCE considered its mandatory training as “fundamentally important” and it was key to establishing “consistent and objective measures for the testing of candidates who wish to become registered massage therapists.” This training program was developed in good faith and was considered critical to ensuring fair and consistent testing, said the tribunal.
The tribunal found there was no evidence it was undue hardship for the OSCE to train examiners individually if they were unable to attend the training — and there were in fact two occasions where it did so. Though this was not a “preferred option” for the OSCE, it was unlikely it would be unable to provide such training, said the tribunal, particularly to someone like Burgess who had years of experience already. The OSCE was unable to prove that attending the training sessions was a bona fide requirement to be an examiner.
However, this didn’t mean the OSCE had to accommodate Burgess. The tribunal found there was no duty to accommodate because Burgess’ illness was not a disability under the Ontario Human Rights Code. Whether Burgess had the flu or strep throat, these were “commonplace, transitory ailments” that did not create barriers to participate in society, said the tribunal.
