Over $50,000 served to fired McDonald’s worker with disability

Restaurant didn’t investigate whether it could accommodate 23-year employee when her skin condition prevented frequent handwashing

A McDonald’s restaurant in Vancouver learned the hard way the extent of its duty to accommodate an employee who came down with a condition which affected her ability to work in a restaurant environment.

Beena Datt worked at the same McDonald’s in various capacities for 23 years until she developed a skin condition on her hands in 2002. She took time off work on disability leave multiple times but each time she came back, she resumed her normal duties and the condition returned. It was exacerbated by frequent handwashing, which was a problem because McDonald’s employees must wash their hands often in order to maintain acceptable sanitary conditions in accordance with government regulation and the restaurant’s own policies.

McDonald’s said frequent handwashing was an important part of working at the restaurant and thus was an occupational requirement. Trying to accommodate Datt would create an undue hardship and wasn’t feasible.

The B.C. Human Rights Tribunal found simply arguing that point wasn’t enough. McDonald’s didn’t investigate any options there were on modifying Datt’s duties, despite the fact she made suggestions herself and there were things she could do without bringing undue hardship on the restaurant. The tribunal awarded Datt lost wages and damages totalling $50,000.

This case emphasizes that employers can’t simply assume an employee’s disability precludes them from meeting job requirements. Their duty to accommodate includes investigating fully and co-operating with the employee to evaluate every possibility of allowing the employee to work. Failing to do so can lead to expensive consequences.

McDonald’s was ordered to pay a fired employee more than $50,000 after the British Columbia Human Rights Tribunal ruled it didn’t reasonably accommodate her when she developed a skin condition preventing her from working in a restaurant.

Beena Datt, 45, started working at a Vancouver-area McDonald’s restaurant in December 1981 as a full-time crew person. She was comfortable and happy there and planned to work at the fast-food chain until her retirement.

Datt’s crew person duties included taking orders from customers, putting the orders together and cleaning the restaurant. She always received good performance reviews and did very well dealing with customers and staff. In 1995, she took on the responsibilities of a swing manager, which included opening the restaurant and supervising the employees of the morning shift. She also filled in at other jobs as necessary.

McDonald’s has a strict handwashing policy in order to ensure conditions are as sanitary as possible. All of its restaurants are subject to the Health Act which establishes sanitation procedures, including handwashing. In B.C., McDonald’s also follows the province’s food protection guidelines, which set out personal hygiene requirements for food handlers.

The restaurant chain’s operations and training manual stipulates the handwashing provisions it has to ensure it meets the sanitary requirements. All managers and crew members are required to wash their hands frequently. It also has a timed system where a timer sounds each hour, upon which all crew members and the manager must wash their hands. The manual stresses the importance of handwashing several times and checklists are posted in various locations in the restaurants.

In January 2002, Datt developed a skin condition on her hands. It gradually grew worse and became so painful she couldn’t work. Her doctor recommended she take time off to let it heal and Datt went on short-term disability (STD) benefits from Jan. 22 to April 1, 2002.

After about two weeks of performing her regular duties, her skin condition returned. She once again went on STD and then long-term disability (LTD). Neither Datt’s doctor nor a skin specialist could diagnose the condition and both said she wouldn’t be able to return to work for some time. Both doctors relayed this information to the benefits provider.

As time went by, Datt’s condition improved and she returned to work on a trial basis on Jan. 6, 2003. The plan was for her to work on a graduated schedule with part-time hours for two weeks and then full-time hours. However, Datt said she worked full-time hours right from the start. Her skin condition flared up again and in mid-February 2003, on the specialist’s recommendation, went on LTD and resumed treatment.

Another specialist said it might not be possible for her to return to her current job, although he noted that could change once the condition was under control. His report to the benefits provider indicated her condition “would almost certainly flare up again if she returned to work” too soon.

The specialist told Datt to wash her hands less when the condition flared up. Datt told the benefits provider in a questionnaire her condition improved at home, but got worse at work. She also said she planned on returning to McDonalds “hopefully with a different position” and suggested she could work as a hostess, prepare salads, fajitas and muffins or work the drive thru.

In July 2003, Datt returned to work again. She explained what she was able to do but there was no change in her duties. The gloves available were in one size which didn’t fit her and this affected the speed of her work in food preparation. Her hands got worse and she resumed LTD on Aug. 1, 2003.

In late 2003 and early 2004 the specialists completed reports for the benefits provider saying she couldn’t perform any job requiring frequent handwashing and she wasn’t yet ready for a restaurant position. However, he did say she could eventually return to the restaurant and suggested the kinds of duties she would be able to perform, including cash, some food preparation and cleaning.

The benefits provider told Datt in August 2004 she wouldn’t be able to return to work at McDonald’s because “restaurant work was not good for her.” Datt was surprised and tried to talk to her restaurant’s manager and the operations consultant, but she was told there was nothing they could do. The benefits provider informed her she would be provided with a three-month job search program until Nov. 30, after which her LTD benefits would stop. Datt had concerns about this as she didn’t want to travel too far and her skin problem would be considered a pre-existing condition at a new job, depriving her of disability benefits.

She reiterated she didn’t want to quit and could handle cash, work the drive thru and prepare salads, muffins and fajitas. However, on Nov. 8, 2004, McDonald’s terminated her because it said she couldn’t work in the restaurant business. It said both Datt’s doctor and the benefits provider believed she couldn’t return to restaurant work.

McDonald’s conceded Datt did have a disability under the Human Rights Code which “adversely affected” her employment and she had a right to accommodation. However, the restaurant claimed it had met its duty to accommodate and couldn’t allow her to come back to work without causing undue hardship since frequent handwashing was an occupational requirement of working in the restaurant.

The tribunal found it significant that after Datt initially developed the skin condition and returned to work after being on disability benefits, no changes were made to her job duties. After her condition returned and she was forced go on disability benefits again, there was still no modification of her duties when she returned. Even though she was supposed to be on a graduated return-to-work program, she “essentially worked full-time.” The benefits provider had been given extensive information on Datt’s condition from her doctors, but nothing was changed at McDonald’s.

“Ms. Datt was never offered, nor was she considered, for a job that was different from the one that she had performed as a crew person,” the tribunal said.

Further reports from her doctors indicated her limitations but no one at McDonald’s ever followed up to investigate whether it was possible to accommodate her in the restaurant, the tribunal noted. It found management didn’t assess what could be done to accommodate Datt’s restrictions, despite the fact there were duties she could have performed. The tribunal also found McDonald’s had only been advised she couldn’t frequently wash her hands, not that she couldn’t wash them at all.

“I do not accept that (McDonald’s) was open to considering what Ms. Datt had to say, her suggestions for a possible change in her duties or whether there were any other jobs available that she could perform,” the tribunal said. “For example, it did not consider if Ms. Datt could perform some of the duties of a swing manager, work in the drive thru and then perhaps act as hostess. Taking these steps would not have caused it undue hardship.”

The tribunal awarded Datt lost wages for the 21 months between her termination and the hearing minus income she made in the interim, which came to $23,078.09, plus $1,822.73 for the loss of pension plan contributions in the same period, $400 for medical and dental expenses and $225 for wages she lost to attend the hearing.

Because of the length and loyalty of Datt’s service, and the fact she clearly intended on returning to work, McDonald’s was also ordered to pay $25,000 damages for injury to Datt’s dignity and self-respect.

For more information see:

Datt v. McDonald’s Restaurant’s (No. 3), 2007 BCHRT 324 (B.C. Human Rights Trib.).

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