StatsCan worker’s illness leads to firing

Employee with sleep disorder could only telework; job could only be done in office

An employee’s request to work from home went beyond a government agency’s duty to accommodate her, the Canada Public Service Labour Relations Board has ruled. Louise Lafrance, 52, was a senior project officer for the statistical operations division of Statistics Canada. Her work involved preparing survey documents for interviewers, preparing training guides for clients and monitoring the progress of field surveys. She had been with the agency for 25 years and was considered a good employee.

In 2000, Lafrance took seven months off work because of sleep apnea, a disorder which affected her sleep and consequently her memory and concentration at work. At this time, her doctor suggested working from home, or teleworking, would help her health. Statistics Canada requested an assessment by Health Canada.

Health Canada submitted a report dated May 31, 2001, which recommended Lafrance stay off work until July 2001, when she could telework and gradually return to working full-time at the office over a period of time. The report stipulated this would help her improve her performance and it would be at least six months before she could work full-time at the office. Statistics Canada took this to mean she would be back in the office full-time after a few months. However, Lafrance continued to work primarily at home, going to the office twice a week, for two-and-a-half years. Another assessment, dated Dec. 12, 2003, said she still couldn’t work at the office but was able to work at home full-time.

On Jan. 13, 2004, Lafrance stopped receiving work she could do at home. Her new supervisor told her Statistics Canada wasn’t happy with her most recent assignment and didn’t have any more work for her that could be done through telework, though it continued to pay Lafrance her salary.

A psychological assessment in May 2004 resulted in a report which said Lafrance couldn’t do any work at all for at least six months. She received a letter on June 4, 2004, informing her that her paid sick leave was used up and she would be on unpaid leave until a reassessment in six months. She filed a grievance through her union and a complaint with the Canadian Human Rights Commission, claiming her employer had failed to accommodate her.

Lafrance reached a settlement, receiving compensation for pain and suffering and an apology for the way her sick leave was handled. Statistics Canada agreed as part of the settlement her doctor would indicate when she would be able to return to work. It considered her on sick leave without pay until July 2004 when she was given some work to do at home until September, when she was told there was nothing else for her at that time.

Lafrance was told she was entitled to disability insurance but she argued it wasn’t necessary as she would be able to return to work. It was also suggested she apply for employment insurance but this was also refused.

On Oct. 24, 2005, Lafrance was given another assignment she could do at home which was supposed to last until April 21, 2006. However, it ended a month earlier as her employer was not happy with the results.

The periods without work were financially difficult for Lafrance as she had a family to support and had to borrow money. She also said she wanted to work during this time, but couldn’t.

Lafrance’s doctor declared her fit to return to work on Dec. 17, 2005, and sent written confirmation to Statistics Canada. However, the doctor’s certificate indicated Lafrance was fit only to perform telework and not work in the office. Her employer tried to find work for her, but claimed her job duties had to be performed in the office.

Statistics Canada argued her position as a senior project officer dealt with confidential information whose security would be compromised if it was sent to a computer at an employee’s home. The public might be more reluctant to co-operate with Statistics Canada surveys and information gathering if it became known the information was available in employee’s homes. It would also be “extremely complex and costly” to set up access to the secure network outside the office.

Statistics Canada also said for some jobs, telework just wasn’t feasible. A senior project officer needed to work closely with clients and other employees within the division, attend many meetings and monitor the survey projects. It estimated only about 25 to 30 per cent of the job duties could be done outside the office. The work Lafrance had been given while working from home was not normal work for her position. While Statistics Canada was promoting telework for its employees, it was only viable when “its negative impacts are at a minimum, in terms of both costs and production.” Lafrance’s job didn’t meet these requirements.

The board agreed Lafrance had “functional limitations” which made her unable to come in to the workplace. Her doctor indicated she was able to work full-time as long as it was telework, so the board found “it would thus be necessary for (Lafrance) to continue teleworking full-time to be able to perform duties for which she would be paid.” However, the board found the duties of her position made her presence at meetings required and the data she needed could only reasonably be accessed at the workplace.

“This obligation for an employee holding a senior officer position to be present at the workplace constitutes a bona fide occupational requirement,” the board said. It found Statistics Canada did try to clarify what Lafrance’s limitations were so it could try to accommodate her. The doctor’s recommendation she could work full-time through telework only frustrated those efforts.

The board found taking the steps necessary to allow Lafrance to perform the duties required of her position would place undue hardship on Statistics Canada. The cost of setting her up at home, the sensitivity of the information involved and the requirements of the position to work closely with others in the office were unreasonable burdens.

Despite these difficulties, the board found Statistics Canada did make a reasonable effort to accommodate her by giving her assignments different from her normal job but ones she could work on at home as well as looking for other positions within the agency she might be able to do. Unfortunately, these attempts were unsuccessful.

“I am obliged to conclude that the employer did not fail in its duty to try to come up with a reasonable arrangement that would enable (Lafrance) to continue working,” the board said.

For more information see:

Lafrance v. Canada (Conseil du Trésor – Statistique Canada), 2007 CarswellNat 751 (Can. Pub. Service Lab. Rel. Bd.).

Latest stories