We have employees working overseas in a climate with extreme heat, dryness and exposure to direct sun. Can we conduct a pre-employment medical test to determine the candidate is not at risk for working in this environment?
Answer: Most jurisdictions have human rights legislation prohibiting employers from discriminating against employees or prospective employees on a number of grounds, including disability and sex. This prohibition is subject to an employer’s ability to establish standards that are bona fide occupational requirements (BFOR).
In the context of pre-employment physical fitness testing, employers must consider whether a failure to hire on the basis of the results would constitute discrimination. If so, would the employer be able to justify its actions on the basis of a BFOR?
In British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U. (often referred to as the Meiorin decision), the Supreme Court of Canada established a unified approach to discrimination claims brought under human rights legislation. Where an employer’s workplace standard discriminates against an employee on a prohibited ground (such as sex or disability), that standard will violate the applicable human rights legislation unless the employer can establish it is a BFOR. The employer must prove:
•it adopted the standard for a purpose rationally connected to the job;
•the standard was adopted in an honest and good faith belief it was necessary for the fulfillment of a legitimate work-related purpose; and
•the standard is reasonably necessary for the accomplishment of that purpose.
Most of the litigation in this area arises under the third Meiorin test. In order to establish a job requirement is “reasonably necessary,” the employer must demonstrate it is impossible to accommodate an employee who cannot meet the standard without causing the employer undue hardship.
Employers are entitled to establish physical fitness standards for employees who are assigned overseas, provided such standards are reasonably necessary for the performance of the job. Where a candidate for a physically demanding overseas assignment fails a pre-employment medical test, the following factors may be relevant in determining whether the employer would be able to succeed with a BFOR defence:
•Did the pre-employment test measure factors that were reasonably necessary for the performance of the job?
•Should the test requirements have been adjusted to accommodate the individual characteristics of the applicant?
•Could the overseas living or working conditions be modified to accommodate the applicant’s limitations, without causing the employer undue hardship?
•Does the employer have another vacant position in its organization that the applicant would be suited for that does not have the same medical fitness requirements?
Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at firstname.lastname@example.org or (604) 891-2212.