Timing of dismissal showed employer 'failed to take the time to adequately consider the information'
“Employers have the duty to accommodate up to the point of undue hardship, and a failure to meet the procedural and substantive elements to accommodate an employee can lead to employer liability.”
So says employment lawyer Paulette Haynes of Haynes Law Firm in Toronto, after an Ontario employer fired a worker on the same day that she provided a doctor’s note outlining medical restrictions – which turned out to be discrimination.
“Once the employee puts the employer on notice about a disability that falls within the definition of the [Human Rights Code], then the employer has a duty to accommodate,” says Haynes.
Physical limitations
The 66-year-old worker was a storefront employee at a Tim Hortons restaurant operated by BPM Enterprises in Ontario. Her duties involved working at the drive-thru, the front counter, food preparation, sweeping and mopping floors, cleaning washrooms and tables, and stocking.
The restaurant was often fast-paced and employees were required to be on their feet for the entire shift, other than during breaks.
The worker was hired in 1999 and gradually developed physical issues that restricted her from performing certain job duties. BPM withdrew her from certain tasks, although it didn’t ask for medical documentation.
The worker was removed from stocking duties that required climbing a ladder when she reported that climbing the top portion of the ladder caused her vertigo, and from sweeping and mopping after she reported shoulder pain from a rotator cuff injury.
Eventually, BPM removed the worker from drive-thru and coffee/beverage duties based on observations of other employees. Filling fridges also became difficult for the worker because she needed to bend on her knees – in 2016, her doctor diagnosed her with osteoarthritis that would require knee replacement surgery – so the supervisor told her to seek help from co-workers.
In September 2017, the worker’s manager and supervisor advised her that she had no holidays or emergency days left and, if expectations weren’t met, she would receive a last-chance agreement. The worker was concerned because she might need more time off for medical appointments.
Two days later, the worker provided a doctor’s note stating that “she may require time off for medical appointments related with chronic medical condition."
Many employers often overlook the value of including a clear workplace accommodation policy in the employee handbook, says an expert.
Fired after second note
The worker followed up with another note on Nov. 3 that indicated limitations on bending and twisting her shoulders and knees and “she cannot kneel or bend to reach and lift items that are below the waist; she can work at waist level; she cannot lift above her head.”
That same day, BPM terminated the worker’s employment for “inability to do duties.” The manager wrote on the doctor’s note “guaranteed EI [be]cause it’s not her fault.”
Four days later, the general manager told the worker that he couldn’t accommodate any more modified work.
The worker filed a complaint of discrimination because of disability, alleging that BPM did not accommodate her and instead terminated her employment. BPM countered that the worker was unable to perform her essential duties and it could not accommodate her further without undue hardship.
The tribunal was satisfied that the evidence demonstrated that the worker’s shoulder condition and right knee condition were physical disabilities under the code.
An employer was not required to accommodate a worker without proper medical information, the Alberta Human Rights Tribunal ruled.
Prima facie discrimination
The tribunal also found that the reason for dismissal was the worker’s inability to perform her duties, which was directly tied to her disability. This constituted prima facie discrimination, the tribunal said, which shifted the onus to BPM to prove that it accommodated the worker to the point of undue hardship.
The tribunal noted that the duty to accommodate is a two-part process that requires the employer to take adequate steps to explore what accommodation is needed – a procedural component – and to assess the options with that information – a substantive component.
The tribunal found that BPM didn’t perform an adequate assessment of the worker’s medical restrictions to determine if she was capable of performing certain duties. It noted that if BPM had made further inquiries, it likely would have obtained additional information, such as the worker’s prognosis, surgery date, and anticipated duration of her restrictions, that would have helped the accommodation process.
Instead, the employer “undertook no meaningful accommodation dialogue with the [worker] after the receipt of the physician’s note,” the tribunal said.
BPM failed to start the procedural component of the duty to accommodate, which prevented it from getting to the substantive part, says Haynes.
“The employer should have engaged in some active inquiry – the easiest way would be get written authorization from the employee to write to the doctor and find out more about the medical condition – the doctor doesn't necessarily need to get the exact diagnosis, but the nature of it, the prognosis, what are the employee’s limitations if any, if there's going to be restrictions around work then for how long,” she says.
“The employer has a duty to inquire, then the employer can go to the next part of the duty of accommodation, which is a substantive duty to assess whether it can provide reasonable accommodations.”
The accommodation process may not always find a solution to everyone’s liking, but reasonable attempts must be made.
No consultation
Haynes also notes that, although BPM had already removed some of the worker’s duties, it did so based on observations and not in consultation with the worker over her restrictions and abilities, adds Haynes.
“That was done without the employer having engaged in that procedural dimension of the duty to accommodate – making inquiries of the [worker] and getting better medical information to help them assess accommodation,” she says. “In addition, the tribunal said that it was ‘highly relevant’ that the worker was dismissed on the same day that she provided a doctor’s note outlining her restrictions, which supported the conclusion that BPM failed to take the time to adequately consider the information in the note and what additional information might be necessary to determine accommodation options.”
Although BPM argued that the second medical note confirmed that the worker couldn’t perform her job duties, the swiftness with which the worker was terminated showed that it didn’t perform the required assessment of accommodation options, says Haynes.
“You're not in a position to establish that you took reasonable accommodation having not done the front-end work in the beginning,” she says.
The tribunal determined that BPM failed to meet its duty to accommodate and therefore discriminated against the worker on the basis of disability.
An employer’s inattentiveness to a worker’s disability led to $50,000 in damages for discrimination in one Alberta human rights case.
Injury to dignity
BPM was ordered to pay the worker compensation for lost wages from the date of her termination to the date of her knee surgery – eight months totalling more than $15,000 – and $20,000 for injury to her dignity, feelings, and self-respect caused by the discrimination.
If an employer is going to rely on undue hardship as the reason for not accommodating an employee, it’s a tough test to meet, says Haynes.
“Undue hardship can relate to two or three things – costs, the impact on the business, and health and safety concerns,” she says. “But what you don't do is terminate the employee – you have to engage in some meaningful discussion or start the [assessment].”
“The whole accommodation process is a collaboration – the employee and the employer [both] have to do certain things so that the employer can explore, in light of the information they get [from the employee], what are the reasonable accommodation steps,” says Haynes. “But terminating an employee just makes much more risk for exposure [to liability], and that's exactly what happened in this case.”
