Lawyer provides insights on case involving worker diagnosed with PTSD, but employer said she could work normally
A worker may have had mental health issues following a physical altercation with a co-worker, but she didn’t provide proof of a disability requiring continued separation from the co-worker as necessary for her to work, the Canadian Human Rights Tribunal has ruled.
The worker was hired by Canadian Nuclear Laboratories (CNL), a federally-regulated company based in Chalk River, Ont., that manages and operates the Canadian government’s nuclear facilities, in 2012. She was an administrative assistant at its facility in Port Hope, Ont.
In September 2012, about eight months after she joined CNL, the worker became a cost controller, responsible for providing support and administration to various financial groups.
On Aug. 1, 2013, the worker was involved in an altercation with a co-worker, during which the co-worker put her hands on the worker’s neck. The worker reported the incident to her manager and later reported that the co-worker had apologized several times. The worker went off work for three weeks.
The day after the incident, the worker submitted a formal complaint about the incident and raised other allegations of workplace harassment against the co-worker. CNL investigated the incident, interviewing both the worker and the co-worker.
The investigation concluded that the co-worker had committed “an act of workplace violence” and had caused the worker “extreme emotional hardship.”
Employees separated following incident
When the worker returned to work on Aug. 21, CNL assigned her to a workstation on the second floor of the facility and directed that all communications between the worker and the co-worker be by email. The worker had previously worked on the first floor with the co-worker. The next day, the worker reported that things were going well and she felt “welcomed.”
In October, CNL raised the possibility of the worker resuming face-to-face working with the co-worker due to operational needs. The worker said she was still experiencing mental health issues and her doctor recommended no face-to-face contact. CNL agreed and didn’t request a doctor’s note.
Around the same time, the worker’s doctor diagnosed her with generalized anxiety disorder and other health conditions, but he noted that the work disruption seemed to have been resolved.
In January 2014, management encouraged the worker to return to the first floor and resume working with the co-worker. The worker expressed reservations, but on Feb. 25 CNL asked her to pack her belongings to help with a move to the first floor. The worker said she was still experiencing anxiety from the co-worker’s bullying and harassment and asked if there was a set time for accommodation.
Medical information indicated worker was doing well
The worker returned to the first floor on March 3, with a meeting space separating her from the co-worker. Her doctor noted that the worker had adapted to her situation and had learned coping mechanisms, and she reported that things were going well at work.
In September, the co-worker got a new job and moved to the second floor.
On Feb. 17, 2015, the worker was absent from work and sent a medical note saying she would be away for three weeks. On March 5, she contacted CNL and said she had been experiencing several health issues over the past five months including fatigue, nausea, and facial numbness, and she was waiting for a diagnosis. She remained off work and eventually received workers’ compensation benefits stemming from the incident with the co-worker.
The worker filed a human rights complaint alleging that the incident with the co-worker had caused mental health disabilities – including post-traumatic stress disorder (PTSD) - that required her to avoid direct contact with the co-worker, and CNL had failed to accommodate her. She claimed nearly $800,000 for lost wages, legal fees, disbursements, and human rights damages.
CNL disagreed that the worker had a disability that prevented her from working directly with the co-worker and argued that avoiding the co-worker was the worker’s preference, not a medical requirement.
Worker had PTSD
The Canadian Human Rights Commission supported the worker’s position, arguing that medical evidence from doctors and psychiatrists subsequently established that she suffered from PTSD and CNL knew or ought to have known of her disability, and the organization failed in its duty to accommodate.
The tribunal noted that the worker had the onus of proving prima facie discrimination in employment by showing that she had a disability, she suffered an adverse impact, and the disability was a factor in the adverse impact.
The tribunal also noted that a diagnosis of a medical condition such as PTSD by a physician doesn’t automatically result in a finding of disability within the meaning of the Canadian Human Rights Act. A functional limitation was also required, such as the worker’s claim that she was unable to work face-to-face with the co-worker in the workplace.
“It looks that, on the face of it, there would be lingering impacts from the incident, but when you distill down the medical evidence it didn't demonstrate that [the worker] had a disability at the time when CNL required that she reintegrate with the co-worker,” says Richard Johnson, a partner and co-founder at Ascent Employment Law in Vancouver.
“I don't know that a lot of employers would have been so gutsy as to look at the medical evidence with that much of a microscope, but their position was that the medical evidence didn't bear out that she had a diagnosable condition that precluded her from doing that.”
The tribunal referred to the worker’s doctor’s notes that stated the worker had adapted and learned coping mechanisms after she resumed face-to-face contact with the co-worker in March 2014. In addition, the doctor wrote in May that year that the worker was “upbeat and positive and so no further action on my part are needed at this time.”
“Over time, events can take on a larger impact and I think that's what happened here - in hindsight, [the worker] became more concerned about the incident, but the medical reports were saying that she found ways to cope and she was adapting,” says Johnson. “She was moving in a good direction in terms of recovering from what most of us would say is a very significant workplace incident, so that undermined her own account that it created the PTSD and it was solely related to this event.”
No proof of functional limitation
Medical experts retained by both the worker and CNL agreed that the worker exhibited PTSD symptoms, but the tribunal found that the medical record didn’t establish that such symptoms were present during the relevant period or that they resulted in a functional limitation requiring accommodation.
The tribunal also found that the worker and her doctor didn’t seem to have ongoing concerns after March 2014 given the worker’s improvement and coping mechanisms. While the medical evidence showed that the worker had some health issues, some dated back to before the incident and there wasn’t enough to link them to the incident, said the tribunal.
The tribunal determined that the worker didn’t have a disability with the functional limitation of avoiding the co-worker during the relevant period and, as a result, she didn’t experience an adverse impact when she was required to resume face-to-face contact with the co-worker. In the absence of prima facie discrimination, CNL had no duty to inquire into the worker’s health conditions or medical needs, nor did it have a duty to accommodate, the tribunal said in dismissing the complaint.
Although the legal duty to inquire only exists in the provincial human rights sphere, Johnson believes that it’s incumbent on all employers, including those that are federally regulated, to inquire if they think there might be a need for accommodation.
“I think it's really important, from a workplace culture standpoint and from an accommodation standpoint, to make [inquiry] part of your MO as an employer,” he says. “If you think something might be going on, follow that duty to inquire - it may lead you to the conclusion CNL had here, that we don't need to accommodate as there's no disability anymore.”
Duty to accommodate
And once there's no disability, there's no duty to accommodate, adds Johnson.
“Not only does there need to be a legitimate medical condition, but there also needs to be a functional limitation,” he says. “That's an important distinction - someone can have PTSD or other condition, but unless they have a limitation that an expert medical practitioner has chimed in on, it doesn't stop them from going back to work and carrying out their duties.”
For people in HR who are dealing with these types of issues, legislation prohibiting asking for medical notes for sick days is being passed in several jurisdictions, but that doesn’t necessarily apply in the context, according to Johnson.
“When it's a longer-term absence, you can ask for more specific medical documentation of what the employee can and can’t do in terms of their reintegration to the workplace and what could potentially be a stressor or a trigger,” he says.
