Procedural

Human Rights: Duty to Accommodate: Procedural

The employer clearly has an obligation to make inquiries as to the employee’s medical restrictions. 1

The employer must make a “meaningful inquiry” before acting to terminate based on a medical disability. One case concluded that the employer had failed, “on at least three occasions, to make any meaningful inquiry into whether the applicant was able to return to useful and available employment with reasonable accommodations”. The complaint was upheld. 2

The employer should obtain details of the employee’s current medical condition, the prognosis, any restrictions on the ability to do the job and capabilities for alternate work. 3

The duty to accommodate goes beyond investigating whether an employee can perform an existing job. It involves investigating whether something can be done to existing jobs to enable the employee to perform a job. 4

The evidence to be used to determine whether such accommodation was effected was that evidence available at the time of the accommodation, not that which subsequently became available. 5

It is a mutual obligation. The employee also has a duty to fulfill her own obligation to participate in the process. 6 Such an obligation of the employee is not to originate a solution, but rather to facilitate the implementation of the employer’s proposal. 7

The employee should provide timely advice as to any medical restrictions and should prudently consider any offers made of accommodation.

It is implicit that the employee will at least attempt a modified return to work before rejecting the offer, absent contrary medical advice. Where the accommodated offer meets the medical restrictions and is within the overall ambit of the skill set and experience and pay level, this is certainly a reasonable expectation. 8

The lack of advance notice from the company to the employee which would have allowed a rebuttal opportunity from the employee, 9 has been seen as influential in addition to the fact that the employer asked for no medical information.

Further the method of termination, which was by email to a vulnerable long-term employee, which had a severe impact on the employee, was also seen as relevant to the accommodation issue as a violation of the procedural obligation. The Tribunal, in particular, noted that the employer failed to ask for any medical information as to her ability to return to work.

The evidence showed a pre-determined intent to terminate the employee, without regard to her diagnosis, prognosis or ability to return to work. There was no BFOR established.

The test of accommodation with respect to medical issues is not limited to the time of termination, but rather should be made as a global contextual analysis taking into account the entirety of the time period of medical absences. 10 This will allow the decision maker to consider the history of medical absences prior to the date of termination.11

It is not necessary for the disabled employee to demonstrate that he will be successful, notwithstanding the disability, to be allowed accommodation. 12

It is not necessary for the employer to demonstrate that a particular form of accommodation had failed before it could conclude that such a modified process should not be implemented.13

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Footnotes

  1. The B.C. Human Rights Tribunal considered the above issue in Mould v JACE Holdings, a March 2012 decision; To the same import is the earlier 2001 decision of the Ontario Board of Inquiry in Metsala v Falconbridge (McKellar).  This issue is also reviewed by the Alberta Court of Appeal in Bish v Elk Valley
  2. Mould v JACE Holdings 
  3. Divisional Court in ADGA Group Consultants v Lane
  4. Metsala v Falconbridge (McKellar)
  5.   Oak Bay Marina Ltd. v. British Columbia (Human Rights Commission aka Gordy
  6. The decision of Madam Justice Lax in Conte v Canada Life, 
  7. The court referenced in support of this proposition the 1992 Supreme Court of Canada decision in Renaud v Central Okanagan
  8. Scarlett v Hamilton Health Sciences; Jeffrey v Dofasco Divisional Court
  9. in Metsala v Falconbridge (McKellar), a 2001 decision
  10. The Supreme Court of Canada in its 2008 decision of HydroQuebec v Syndicat des employe-e-s de techniques professionnelles et de bureau d’Hydro-Quebec; Supreme Court of Canada decision in its 2007 decision of McGill University Health Centre.
  11.   The 2008 decision of The B.C. Human Rights Tribunal (Lyster) in Senyk v WFG Agency came to the conclusion that the correct time to apply the test was of the duty to accommodate was the date of termination, adding that in a human rights context, timing is more important, given the context of the employer’s defence to establish a BFOR to the prima facie case of discrimination. This is no longer the correct law, as noted above.
  12. Kerr v Boehringer Ingelheim BCCA
  13. Kelly v. University of British Columbia; upheld on judicial review by B.C. Supreme Court