'The starting point has to be that the employer has enough information to start the process': lawyer
A worker’s allegation that his employer failed to accommodate him would not succeed in a hearing because the worker didn’t provide medical information necessary to help in his accommodation, the British Columbia Human Rights Tribunal has ruled.
The worker was an education assistant with BC School District No. 39 in Vancouver since 1990.
On March 18, 2020, the province declared a state of emergency due to the COVID-19 pandemic, and the district closed its schools. A couple of months later, the provincial government ordered a re-opening of education services in hybrid form.
The school district implemented comprehensive safety protocols at its schools for when students and staff returned, including procedures on working with children in “stage 3,” which involved both in-class and remote learning. In July, the BC Ministry of Health developed an education restart plan with the expectation that all schools would return to full in-class learning that fall, which was termed “stage 2.” This plan included revised public health guidelines to reduce the transmission of COVID-19.
In August, the worker requested an accommodation to work from home during the 2020-2021 school year “or until such time as the viral threat either subsides or a vaccine is available.” He said that he was susceptible to respiratory infections such as COVID-19 because of his age and a medical history of respiratory issues such as a collapsed lung, bronchitis, and pneumonia. He provided a medical note from his doctor indicating that he shouldn’t work with students because he had a higher chance of developing complications from COVID-19.
Employer requested medical information
The district responded that it would be returning to full-time in-class learning under the provincial government directive and remote work wasn’t available in stage 2. It also said that government agencies indicated that the risk of COVID-19 transmission was low if health and safety protocols and personal hygiene requirements for schools were followed – a two-day orientation would be provided for staff on these protocols.
The district also requested supporting documents regarding the nature of the worker’s illness, his elevated risk of COVID-19 infection, and the possible consequences of infection. The worker didn’t respond to this request.
“It looks like the initial response from the district wasn't particularly helpful because it basically just parroted what was being said by the government, although it wasn’t driving the bus in terms of the decision to have students attend school physically - all of that was being dictated by the highest levels of the provincial government,” says Michael Penner, a labour and employment lawyer at Kent Employment Law in Victoria.
“But the district did ask him to provide something a little more substantive about his condition - you have to connect the dots on what particular pre-existing condition exists and how is it linked to COVID, medically speaking?”
The worker emailed the district on Aug. 31 with another request to work remotely, as this was now an option. He reiterated his elevated risk related to his age and medical history and said that the district couldn’t guarantee a COVID-free workplace without comprehensive testing of all students and staff. He provided the same doctor’s note with an annotation that it had been updated to that date.
The district said it was meeting with union executives to discuss options, since it required a return to in-class learning. It requested updated medical information and a list of the steps he was taking to mitigate his exposure to the virus in his home environment by Sept. 3. However, the worker didn’t provide any additional information.
Balance between privacy and reasonable accommodation
Asking for medical information for accommodation purposes is a balance between the employee's privacy and what would be necessary to find reasonable accommodation, says Penner.
“Oftentimes employers will ask the employee’s medical provider through a pre-arranged form and a job description to go through certain points such as their condition, prognosis, activities they’re currently capable of doing, what activities will they be capable of, and on what timetable,” he says.
The worker filed a human rights application alleging that the school district discriminated against him in employment on the basis of disability by failing to accommodate his request for remote work.
The district denied discriminating, arguing that it tried to accommodate the worker but it couldn’t implement reasonable accommodation without further information regarding his disability. It applied to dismiss the complaint under s. 27(1)(c) of the BC Human Rights Code as having no reasonable prospect of success because it was reasonably certain to defend against the discrimination allegation at a hearing. The worker didn’t submit a response to the dismissal application.
As the district contended that it could defend the discrimination allegation, the tribunal assumed that the worker took the elements of his case “out of the realm of conjecture” and focused on whether the tribunal could prove that its requirement for the worker to return to work in-person was a bona fide requirement. This involved a three-part test – the employer adopted the standard for a purpose rationally connected to the performance of the job, it adopted the standard in an honest and good-faith belief that it was necessary for that purpose, and the standard was reasonably necessary to accomplish that legitimate purpose.
Bona fide occupational requirement
The tribunal found that the first two parts of the test were met easily, noting that the school district adopted the requirement of in-person work for all staff in compliance with the BC provincial government’s expectation that in-person educational services would be provided in September 2020 and beyond. There was no dispute that the district adopted this requirement in an honest and good-faith belief that it was necessary in order to maximize in-class instruction for students, said the tribunal.
As for the third part of the test, the question was whether the district took meaningful steps to reasonably accommodate the worker in meeting the standard. The tribunal noted that when the worker made his first accommodation request, the district requested specific medical information about his vulnerability to the virus, but the worker didn’t respond. When the worker made his second request, the district asked for updated medical information, but the worker sent the same doctor’s note and nothing else, the tribunal said.
Noting that employers are entitled to information necessary to formulate a reasonable accommodation – such as “the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work” - the tribunal found that the worker didn’t provide any such updated medical information that would help the accommodation process. Because of the worker’s failure to co-operate, the district’s accommodation efforts reached undue hardship, the tribunal said.
“[The district] didn't have to do much work to satisfy that the return-to-work plan was legitimate and done in good faith, simply because it was a province-wide plan instituted by the chief health officer,” says Penner. “And then with respect to accommodation, the district quite easily demonstrated that it did what it was obliged to do, which was to ask him for more information so they could come up with a plan - and that information just wasn't ever provided.”
Accordingly, the tribunal determined that there was no reasonable prospect that the worker’s application would succeed at a hearing and dismissed it.
Accommodation to point of undue hardship
Ultimately, the legal test is whether the employer has gone to the point of undue hardship to come up with an accommodation plan, says Penner.
“Undue hardship is a very high standard, and an employer could have an accommodation that’s onerous, time-consuming, costly, and a pain in the butt to run, but if it doesn't reach that threshold of undue hardship, it might be entirely reasonable,” he says. “But the starting point has to be that the employer has enough information to start the process.”
