Job applicant didn't disclose epilepsy until she was hired
This edition of You Make the Call involves a nurse who was offered a job and then had it rescinded when she reported she had epilepsy.
Melanie Yuille was a nurse who started having epileptic seizures in 2010. At the time, she was working as a research co-ordinator. She received treatment, but had difficulty working on a rotating shift schedule. She went on sick leave for a while before leaving her position and joining a private long-term care facility that had shift scheduling that was easier on her.
By early 2015, Yuille felt she was losing her acute care skills and wanted to find a job where she could hone those skills. Her epilepsy was mostly under control, so she applied for a nursing job at Dartmouth General Hospital in Dartmouth, N.S., that was operated by the Nova Scotia Health Authority (NSHA). The position was in an acute-care unit with patients who were seriously ill. She was accepted for an interview on March 6.
During the interview, the health services manager for the unit said there were three vacant positions and there was an urgent need for nurses on the night shift. Yuille didn’t mention that she had any restrictions on a rotating shift schedule as she didn’t think that was a bona fide occupational requirement and, if she was otherwise qualified, the NSHA would have a duty to accommodate her. She had also been advised in support groups not to disclose her epilepsy too early in the job interview process so it wouldn’t factor into the decision. Either way, she didn’t have a problem working nights, just having frequent changes in her shifts.
On March 26, the NSHA offered Yuille a conditional job offer. She was given an employee health questionnaire on which she disclosed that she had epilepsy. She then met with the occupational health nurse two weeks later, who by then had received reports from Yuille’s doctors that stated her shift rotation should change no more frequently than every six weeks and she shouldn’t work night shifts as part of her regular rotation.
Yuille was pleased with the doctors’ reports, as she took them to mean she was cleared to work with only the restriction limiting regular night shifts. She gave her notice of resignation at the long-term care facility in anticipation of starting at the hospital.
However, on April 21, a couple of weeks after she gave her notice of resignation, the NSHA sent her an email rescinding the job offer. Yuille contacted the human resources department, but all they said was she was free to apply for other jobs and it wasn’t the department’s role to oversee accommodation.
The following month Yuille filed a complaint of discrimination based on disability. Soon after, NSHA posted three full-time nursing positions that were identical to the one for which she had applied — except for the added wording that rotating shifts was a job requirement.
In September 2015, a resolution conference was called between Yuille and the NSHA. The NSHA indicated shift work was a requirement for the nursing position and it did not have a duty to accommodate new hires, only existing employees. However, it had some alternative jobs that it was prepared to offer Yuille — a night shift job and a part-time day shift job on a transitional care unit at the hospital, and a 0.8 temporary full-time equivalent job (days and evenings only) on the acute-care unit. Yuille rejected the temporary position and, while she was considering her options, the NSHA withdrew the two other positions as they were no longer available for budgetary reasons.
You Make the Call
Did the NSHA have a duty to accommodate Yuille before she was officially hired?
OR
Did the NSHA have the right to hire someone who could fit its needs for nights and rotating shifts?
IF YOU SAID the NSHA had a duty to accommodate Yuille, you’re correct. The Board of Inquiry noted that the Nova Scotia Human Rights Act should provide protection against employment discrimination for everyone. However, such accommodation shouldn’t clash with the rights of existing employees — meaning the point of undue hardship can be more easily reached when trying to accommodate a prospective employee, said the board.
The board also noted that reasons the NSHA rescinded the job offer were that her hiring would not have met the hospital’s need for nurses to work night shifts, and having her work shorter days and evenings only would require others to work more nights, raise costs for the NSHA, raise safety concerns, and have a negative impact on morale.
However, the board found the issues with morale and safety were speculative and not enough to be used as reasons against accommodation. It also found there was no concrete effort to determine what the actual cost of accommodation would be and whether it would constitute undue hardship.
Finally, the board found insufficient evidence that having Yuille work only rotating shifts every six weeks and few night shifts would create undue hardship on the unit. There were more than 20 nurses on the unit and an accommodated schedule for one shouldn’t create a problem, said the board. Even though Yuille didn’t help meet the need for night nurses, the ability to work nights could not be used as a bona fide occupational requirement, the board concluded.
The board determined that the NSHA discriminated against Yuille when it rescinded the job offer without accommodating her. The NSHA was ordered to pay general damages of $15,000 plus special damages for financial losses when she gave up her previous job. The board also ordered the NSHA to offer its next available nursing position to Yuille with reasonable accommodation. See Yuille and Nova Scotia Health Authority, Re, 2017 CarswellNS 615 (N.S. Bd. of Inquiry).
