It's all about the effort

The accommodation process may not always find a solution to everyone's liking, but reasonable attempts must be made

It's all about the effort

When an employee requests accommodation for a disability, it puts into motion a process that can involve many moving parts. Legally, employers have to take such a request seriously, as they have a duty to accommodate under human rights legislation. The formal extent of accommodation is to the point of undue hardship, which means the point at which the employer could be unreasonably hindered or damaged by trying to accommodate an employee. But usually it’s the effort that counts, not necessarily the result.

The effort matters even if the employer may not really believe the seriousness of the disability. An Alberta restaurant employed a cook with back problems who asked for modified work, supported by medical notes. The restaurant’s owner and some staff started to believe that the cook was using his disability to avoid tasks such as lifting and carrying lighter items that were within his restrictions, or sometimes taking days off. The worker took exception and there were several incidents of disruptive behaviour; eventually, he was fired following a confrontation with a co-worker.

The Alberta Human Rights Tribunal dismissed his claim of discrimination, finding that the restaurant accommodated the cook by re-assigning him to lighter work and exempting him from duties that exceeded his medical restrictions. Even if the restaurant didn’t believe the extent of his disability, it took steps to accommodate him based on the information it had, which was all that was legally required, said the tribunal: see Gatenby v. Fourth Street Public Eatery Ltd., 2021 AHRC 31.

In another case before the Alberta Human Rights Tribunal, a worker claimed discrimination when his employer refused his request to go back to sedentary duties following a stint with light and medium duties in the wake of a workplace injury. The evidence indicated that the light and modified duties were within the medical restrictions set by the worker’s doctor. Although the worker’s injury appeared to be aggravated by the work, the adverse impact wasn’t due to discrimination because the employer was following the medical restrictions that were provided: see The worker v. Pillar Resource Services Inc., 2021 AHRC 121.

Similarly, when a teacher with the Toronto District School Board (TDSB) revealed that she had chronic medical conditions including fibromyalgia and chronic fatigue syndrome, the TDSB accommodated her with an elevator key so she wouldn’t have to use the stairs and scheduled her to work in a classroom near the washroom and office. Eventually, the worker requested more accommodation, including a transfer to a location closer to her home to prevent a relapse, supported by a doctor’s note. The TDSB felt it would be too disruptive in the middle of the school year and the union filed a grievance.

The arbitrator found that there was no evidence that the commute caused an adverse impact related to the teacher’s disability, particularly since she had made the drive for four years already. In addition, the doctor’s note was based on a discussion with the teacher, not actual medical evidence. The arbitrator determined that the TDSB didn’t have to make the accommodation exactly to the teacher’s liking to meet its duty to accommodate.

While taking timely and reasonable action will often fulfil an employer’s duty to accommodate, a tendency for inaction may spell trouble. Another Ontario school board, the Hamilton-Wentworth Catholic School Board, had a teacher on medical leave from 2000 to 2007. He was approved for a gradual return to work in a low-stress environment, but the school board required further medical reports and tests. They held return-to-work meetings in 2009, but the school board had no suitable positions available. It eventually offered to place the teacher at another facility, but discussions came to a halt as a grievance and a human rights complaint.

An arbitrator found that the school board’s slowness to assess medical information over the years was a significant factor in the delay for getting the teacher back to work and awarded damages for injury to dignity, feelings, and self-respect as well as lost wages for more than three years.

Canada Post found itself in a similar position, having to pay a worker more than $38,000 for discrimination after multiple unsuccessful attempts led to the corporation pausing a job search for several months while waiting for further medical information. During this time, the worker’s STD benefit lapsed and his LTD application was denied, so he was left without pay. Had the corporation continued the job search while waiting for additional information, it might have found something before the STD benefits ran out. Instead, the employee suffered an adverse impact related to his disability, said the Canadian Human Rights Tribunal.

Sometimes, inaction leading to discrimination comes not from simply not doing anything, but rather not doing enough research into what is reasonable and necessary. An Ontario call centre accommodated an employee with diabetes by allowing him to test his blood-glucose level and inject insulin at his workstation. However, a union steward raised a concern that having the employee do that at his cubicle might be a health and safety issue because the cubicles weren’t cleaned between shifts. The employee was told to use a nearby office and the employer offered to change his break schedule to coincide with his testing schedule.

An arbitrator found that requiring the employee to use a private office was discriminatory because it was based on the assumption that the employee’s diabetic care was a risk to others, but there was no evidence to support that idea. It was an adverse impact related to the employee’s disability that was not rationally connected to the job or a workplace need.

It’s important to remember that accommodation is a two-way process and both the employer and the employee have an obligation to participate. Recently, the B.C. Human Rights Tribunal dismissed an employer’s application to dismiss a worker’s discrimination complaint because the employee didn’t co-operate in accommodation efforts. Although the tribunal agreed that the worker didn’t provide additional medical information the employer needed, the employer had some information that would have allowed it to place the worker in modified duties and it wrongfully requested an independent medical examination right off the bat instead of accepting notes from the employee’s doctor.

Many employers and HR professionals may find their heads swimming when faced with an accommodation request, but the key thing to remember is that taking action is always better — and safer — than inaction.

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