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How Not To Accommodate A Disabled Employee
Mon, 2007-11-19 09:00 — Robert Smithson
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Every employer is (or, at least, should be) aware of its statutory duty to accommodate disabled employees. It seems, however, that some are more effective at meeting this duty than others. Or, perhaps it’s more appropriate to say that some are worse at it than others.
The statutory duty, arising out of provincial and federal human rights legislation, obligates the employer to take certain steps in enabling the disabled employee to become, or return as, a functioning member of the workforce. The employer must treat this obligation in a serious manner, patiently and carefully assessing the disabled individual’s condition.
It’s probably true that most employers have now come to understand their duties and to apply them in an appropriate manner. Every once in a while, however, a story comes along that makes employment lawyers and human rights advocates shake their heads.
A glaring example occurred a couple of years ago involving Honda Canada’s operations in Ontario. Closer to home in British Columbia, our Human Rights Tribunal recently decided the discrimination complaint of Beena Datt against her employer, McDonald’s Restaurants of Canada Limited.
Ms. Datt had been a restaurant employee of McDonald’s in Vancouver for 23 years. She appeared to be a very valuable, and highly valued, crew person.
Ms. Datt developed a painful skin condition on her hands in January of 2002, causing her to have to take a medical leave from her employment. Physicians were unable to diagnose the skin condition but it improved when she was away from work.
Her medical condition seemed to be triggered, or exacerbated, by the need for frequent hand washing. Hand washing in the restaurant business is, of course, both a legal and practical need. But Ms. Datt had been active, throughout her medical leaves, in suggesting duties she could perform which would reduce the need for washing.
She ended up taking several medical leaves as a result of the condition and each time, upon her return, she was required to perform essentially the same crew duties. In August of 2003, she went on a final medical leave. Over the next 15 months, Ms. Datt continued to attempt to return to work but, in November of 2004 McDonald’s terminated her employment.
The Human Rights Tribunal reviewed the conduct of McDonald’s in the course of her absences and attempted returns, and in terminating her employment. It determined that, after each medical absence, she was never offered (or even considered for) a job that was different than the crew person duties she had been performing.
There was no evidence that McDonald’s considered whether she could return to a different job, or to modified duties, or to performing her existing duties in a modified way (such as wearing gloves). McDonald’s never provided her physician with job descriptions by which it might have been determined whether she could safely perform a different job.
Despite the importance of her job to her, and despite Ms. Datt’s repeated statements that she wanted to return to work, there was no real attempt made to determine if there was any work she could perform. The Tribunal commented that the employer must be innovative (though practical) in considering how to accommodate the individual, and found little evidence that McDonald’s even attempted to meet this obligation.
Ms. Datt remained co-operative and eager to return to work throughout her absences. She identified alternate jobs and modified duties and was willing to provide further medical information. The Tribunal found that “she effectively received no response” from McDonald’s.
When her physician indicated she could work in the restaurant if the position she held did not require “frequent” hand-washing, no one at McDonald’s sought to clarify what “frequent” meant. And, there was no follow up to determine if her condition would prevent her from performing other jobs in the restaurant.
McDonald’s did not commission any sort of functional capacity evaluation. It really did not engage in any meaningful discussions with Ms. Datt or her physician to determine if there was work available which would meet her physical restrictions but would also conform to the restaurant’s hand washing policies.
The Tribunal listed some elements of the employer’s duties in the course of attempting to accommodate the return of a disabled employee. The employer must give the employee the opportunity to provide medical evidence supporting her return to work. It must provide the physician with information about the demands of the jobs in question. It must be informed and knowledgeable about the disability (which can really only occur if the employer actively engages in the accommodation process).
It must carry out an individualized assessment of the prospects for a return to work, and that must include consideration of whether workplace policies must be varied (in appropriate circumstances) to further the accommodation. While the employer doesn’t necessarily have to create a new job to accommodate the individual, it does have to consider whether it can bundle existing duties together to facilitate the accommodation.
In the end, the Tribunal was unequivocal in its condemnation of McDonald’s conduct. The Tribunal stated that it was “at a loss to understand why McDonald’s did not take more steps to try and accommodate Ms. Datt”. She was entitled to a “fulsome consideration of her restrictions and how those restrictions intersected with the hand-washing policies and the jobs that were available”.
The remedies awarded to Ms. Datt reflected the Tribunal’s comments. She was awarded over $50,000 in damages, including $25,000 for injury to dignity, feelings, and self-respect.
The irony of this story is that Ms. Datt was, by all accounts, a highly motivated and dedicated employee. She was no malingerer, clearly desired to return to work, and was proactive in offering possible solutions. In these days of widespread labour shortages in western Canada, it’s hard to imagine an employer failing to accommodate such an employee.
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.
