Policy was 'rooted in science and best practice evidence on safety': lawyer
“Establishing a bona fide occupational requirement is not something that an employer should assert or delve into lightly, but if it's something that they feel is important to their organization and important to a position from a safety perspective, it should be reviewed and analyzed by professionals to have supporting evidence in the event that it is challenged.”
So says Amy Gibson, an employment and labour lawyer at MLT Aikins in Saskatoon, after the Canadian Human Rights Tribunal determined that a Royal Canadian Mounted Police (RCMP) policy that kept a constable away from operational duties for five years following a seizure was a bona fide occupational requirement.
The worker was a constable with the RCMP since 2008, stationed in Burnaby, BC.
On July 14, 2010, the worker suffered an epileptic seizure that caused a traffic accident on the way to work. He was off work until Nov. 6, when he began a gradual return to work with administrative duties.
Two weeks later, the worker’s neurologist issued a report that confirmed that the worker had suffered several episodes of epileptic seizures since 2005. An EEG found abnormal spikes compatible with focal epilepsy, a diagnosis confirmed by the neurologist.
The worker claimed that his seizure was caused by the use of certain stimulants, not illness. He stopped taking the stimulants and his neurologist recommended that he could resume his operational duties within six months. The worker was also required to take medication to control his condition.
5-year policy
The worker was unable to return to operational police duties under the RCMP’s “5-year policy,” which prevented him from performing operational duties until five years after his last epileptic seizure, regardless of whether he was taking epilepsy-related medication.
The original 5-year policy required any person who requires medication to control seizures to remain administrative for their entire career. In 2010, the policy was amended with advice from doctors to allow someone taking medication indefinitely to return to operational duties after five years without seizures. However, the written policy was not modified at the time.
“It probably would have been better for the policy to state that individual circumstances will be considered, rather than something that blanketly applies,” says Gibson. “In the evidence, it seems that the policy may have originally been that way but then it was amended, and it would have been helpful [to have that statement] - if you have guiding policies, include language that says your individual circumstances will be considered on a case-by-case basis.”
Over the next few years, the worker had to frequently take time off due to mental illness that the worker attributed to his ban from operational duties. He considered the 5-year policy to be prejudicial and discriminatory because it didn’t consider his personal characteristics and his own specific risk of a recurrence of seizures.
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Worker felt angry and humiliated
The worker was also displeased that he missed out on a substantial amount of overtime and experience that would have helped his career advancement because he wasn’t performing operational duties.
In addition, the worker felt humiliated because his seizure was disclosed to his colleagues, which he felt was “an embarrassing personal weakness.” He perceived comments asking how his head was or that he could get back to his feet as discriminatory.
The RCMP’s medical experts assessed the worker in early 2015 and cleared him to return to operational duties in May.
However, the worker filed a discrimination complaint alleging that the 5-year policy was discriminatory on the basis of disability.
The tribunal found that the worker’s diagnosis of focal epilepsy constituted a disability, which satisfied the first part of the three-part test for discrimination. It also found that the worker suffered a detrimental effect from the policy through “financial prejudice” in losing out on overtime hours.
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Prima facie discrimination
The tribunal also found that the fact that the worker suffered seizures and was diagnosed with focal epilepsy was the reason the 5-year policy was applied. The worker’s disability was the reason he was removed from operational duties and was therefore a factor in the detrimental effect that he suffered. This met the third part of the three-part test for prima facie discrimination, said the tribunal.
With the worker having proved prima facie discrimination, the onus shifted to the RCMP to show that the decision to keep the worker out of operations for nearly five years was a bona fide occupational requirement.
The RCMP provided evidence that the 5-year policy was applied to the worker because epilepsy could cause sudden incapacitation, paralysis, or cognitive impairment. In the role of an operational police constable, this could pose a risk to the worker, co-workers, and the public. The policy was also partly inspired from the Canadian Medical Association Guide for driver examination – which requires five years without a seizure with or without medication for commercial drivers and six months for a non-commercial driver - as driving was an “integral part of police work.”
The RCMP also provided medical evidence showing that the risk of seizure recurrence diminished to three per cent after three-to-five years with no seizure and one per cent after five years.
“They looked for information from trained professionals who have reviewed this information before and who are qualified to review and provide professional opinions on it, rather than just saying, ‘We think that this is something that is a concern and so therefore it's a bona fide occupational requirement,’” says Gibson. “They utilized professionals to support their position and to ensure that it wasn't just a policy that worked best for them, but one that was really rooted in science and best practice evidence on safety.”
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Safety-sensitive work
The evidence satisfied the tribunal that a police officer’s job was safety-sensitive and the 5-year policy was rationally connected to the policy’s goal of safety for the worker, co-workers, and the public, and also rationally connected to the safety-sensitive nature of police work.
The tribunal also noted that the RCMP applied the policy with flexibility in relation to the worker’s particular circumstances and allowed him back on operational duties a few months before five years had elapsed since his last seizure. In addition, there was no evidence that the RCMP had any motive in establishing the policy other than to maintain safety in the police force. The policy was therefore adopted in good faith, said the tribunal in ruling that the five-year standard was a bona fide occupational requirement.
The tribunal also found that the RCMP accommodated the worker with a gradual return to work in an administrative role and worked closely with him as he experienced mental health issues. The tribunal noted that the RCMP was not required to create a position or find the perfect accommodation solution, it was only obligated to find reasonable accommodation.
The RCMP did an excellent job of identifying the specific safety concerns they had, says Gibson.
“When they were establishing a bona fide occupational requirement for whether this person could go on duty with the public, they looked at outside resources for determining safety in relation to epilepsy, they conducted their own research, and they had a well-drafted and thought-out policy,” she says. “They also did a good job of not blatantly applying the policy to an individual without considering his specific circumstances.”
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Flexibility for worker’s circumstances
Noting the RCMP’s flexibility in returning the worker to operational duties before the end of the five-year period, the tribunal found that the RCMP accommodated the worker up to the point of undue hardship. The worker’s complaint was dismissed.
Although the worker’s perception was that he was being discriminated against and targeted, that didn’t lead the tribunal to find that there was discrimination, says Gibson.
“[Courts and tribunals] will certainly take into account the complainant’s subjective view, but that doesn't rule the day - they also have to look at the evidence and how a reasonable person would view the circumstances,” she says. “At the end of the day, an employee is not entitled to perfect accommodation or their preferred accommodation, but they are entitled to reasonable accommodation.”
