Accommodating a disability at a small employer

Our question pertains to an employee who has worked for the company for more than two years and has been off on stress leave since the fall

Tim Mitchell
Question: Our question pertains to an employee who has worked for the company for more than two years and has been off on stress leave since the fall. The employee has supplied a doctor’s note every 30 days and, due to the fact our company has no benefit plan, she is collecting employment insurance.

We have contacted the labour board, made inquiries and have been informed of the various types of leaves. Basically our circumstances would permit us to terminate this employee. However, I was told the employee might be protected under human rights legislation. This seems to be somewhat of a grey area. But when contacting the human rights commission I could not obtain a definitive answer. As a small firm we do need to hire another person to perform essential services to our business.

We can’t hold her job open indefinitely and then be faced with the problem of having her return to work. Initially, we did arrange for limited return to work program where the employee had reduced duties and reduced hours. But the employee was unable to handle it. Apparently the employee’s problem stems from an inability to have a family and the only other employee who shares office space with this employee is pregnant. Can we legally terminate the employee or are we compelled to keep her job open indefinitely?

Answer: From the information you have provided, it appears that you face a situation that may have no definitive answer. Some aspects of your company’s situation are clear. There is little doubt your absent employee’s stress-related condition would constitute a physical or mental disability under human rights legislation.

There is also little doubt that the human rights legislation applying to your company would prevent the company from discriminating against a disabled employee. At a rudimentary level, this protection insures an employer cannot terminate an employee simply because the employee is ill.

However, the nature and degree of protection offered by human rights legislation has become increasingly complex over the past few years.

Human rights legislation requires that the employer look at the employee as an individual, consider that individual’s particular circumstances and take all reasonable steps to help the employee to continue her employment despite the disability.

But an employer’s obligation in this respect is not open-ended. The obligation is considered to have been met if and when the only options which would allow an employee to remain employed place an undue burden on the employer (known in legal circles as “undue hardship.”)

What will constitute undue hardship in any particular case depends on the specific circumstances. There is really no way to predict the practical scope of an employer’s duty of “accommodation to the point of undue hardship” independent of the facts and the continually evolving case law.

What is clear is that an employer is actually required to bear some hardship. Mere inconvenience is insufficient. Accommodating measures may take a variety of forms such as paying sick leave; replacement employees; purchasing furniture or equipment; making physical changes to an office environment; modifying methods of job performance; rebundling job duties; eliminating aspects of a job temporarily or permanently; accepting absenteeism and partial or sporadic attendance; and permitting a gradual return to work.

What measures are necessary and appropriate and when an employer will be found to have done enough depends upon a number of factors. Some that have been specifically identified are financial costs, employer’s size and resources, degree of disruption caused by accommodating measures, impact on other employees in terms of morale and employee rights, interchangeability of workforce and health and safety concerns arising from accommodation of the disabled employee.

Your question indicates your company has already attempted to accommodate the employee to some degree by maintaining her position and by arranging a gradual return to work program.

However, the fact one attempt was unsuccessful does not mean the company is necessarily free to terminate the employee without making further efforts. The prior attempt may have been unsuccessful because of the employee’s physical proximity to an employee who is herself likely to be leaving shortly on maternity leave suggests another attempt could have a greater possibility of succeeding.

Whether or not that might actually be the case would, of course, depend on the employee’s condition, medical advice and the prognosis for her recovery. Human rights law does not generally require employers to indefinitely employ individuals who are permanently incapable of performing their jobs.

Given the essential nature of the service formerly performed by the disabled employee and the company’s small size, it is possible the company might be able to justify termination of the employment relationship if there is no likelihood of the employee being able to be successfully reintegrated into the workforce for the foreseeable future.

Conversely, the fact the absence is one of relatively short duration and has caused the company no obvious hardship might suggest a decision to sever the relationship is premature.

In any event, this is a decision that should be made with sensitivity, full knowledge of the facts and circumstances and legal advice.

Any breach of human rights legislation can result in financial liability. However, conduct that shows bad faith and callousness toward disabled employees can and has resulted in substantial damage awards.

Tim Mitchell is an employment lawyer with Laird Armstrong in Calgary. He can be reached at [email protected] or (403) 233-0050.

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