Disability in the courts

The Legal Framework
This framework, giving rise to employers’ and employees’ rights, considers three areas: statutory, contractual and common law.

Statutory: The manner in which disabilities should be managed at work is governed by the written legislation in any jurisdiction. Although there are some similarities across Canada, the law does differ from province to province and warrants careful consideration. Further, some employers, such as banks, are regulated federally instead of provincially.

Once it is clearly established which provincial or federal laws apply, the employer should consult five areas of law: human rights, workers’ compensation, occupational health and safety, employment standards and privacy. Human rights legislation requires that employees with a disability be reasonably accommodated to the point of undue hardship. Provincial workers’ compensation legislation may be applicable if the employee has a compensable injury. Occupational health and safety legislation is concerned with the disabled employee’s safe return to work as well as the investigation of any workplace accidents. In some provinces, the employment standards legislation allows for leave in emergency situations, including possible sick or disabled leave. Finally, privacy legislation affects the manner in which an employer may collect, use, disclose, store and retain an employee’s personal information, including health information.

Contractual: To manage a disability issue, employers need to consider whether or not any contracts contain provisions affecting sick leave or disability leave entitlement. In a unionized environment, the collective agreement may contain relevant provisions. Employment and independent contractor contracts may also contain provisions regarding sick leave entitlement or automatic termination after a certain number of days.

Existing benefit policies may also affect an employee’s sick or disabled leave entitlement. Short- and long-term disability provisions should be carefully examined in the management of a disabled employee. Also, an employer’s policies, including sick leave policies, should be examined for information such as notice required and the ability to request independent medical evaluations.

Common Law: When managing disability, the most relevant issue arising under the common law is whether or not an employee’s employment contract has been “frustrated,” that is, when the disability prevents the employee from doing the job. If a contract is frustrated, employers do not have a positive duty to give notice of termination or pay in lieu of notice or severance pay(although some provinces’ statutory notice or severance may still apply). When determining whether an employee’s disability has frustrated the employment relationship, however, an employer must remember its human rights obligation to accommodate reasonably to the point of undue hardship.

Human Rights and Disability
All human rights legislation in Canada prohibits discrimination in employment on a number of grounds, including physical and mental disability. Employers cannot refuse to employ an individual, terminate an employee or discriminate against any employee with regard to the conditions of employment on the basis of a perceived or actual disability.

The first step in the analysis of discrimination is for an employee to demonstrate that discrimination has occurred, that she has been treated differently in a condition of employment. The employer then has to establish that the offending condition of employment is a bona fide occupational requirement (BFOR). A BFOR is a legitimate and essential part of the employee’s job duties. For example, if an employee who works as a logger develops a physical disability preventing him from walking in the woods or doing any physical labour, the employer may be able to terminate employment because the ability to do those things is a BFOR. This is so provided only that there are no practical or financially feasible adjustments that can be made to permit the employee to continue at work.

Employers must then consider the test set out by the Supreme Court of Canada in British Columbia (Public Service Employees Relations Commission) v. B.C.G.S.E.U. (Meiroin). In order to determine if a standard set by an employer is a BFOR, the employer must be able to show that:

1) the employer adopted the standard for a purpose rationally connected to the performance of the job;

2) the employer adopted the standard in honesty and good faith that it was necessary to the fulfillment of that job; and

3) the standard is reasonably necessary to the accomplishment of that job. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Usually, employers have little difficulty demonstrating that the first two requirements of the Meiorin test have been met. But the third is the focus of most judicial consideration and is difficult for employers as they must show that the standard is reasonably necessary to accomplish the job by demonstrating that they can’t accommodate the employee without undue hardship.

“Undue hardship” is a high standard and requires direct, objective evidence of quantifiable higher costs, the relative interchangeability of the workforce and facilities, interference with the rights of other employees or health and safety risks. The employer must assess each employee individually to determine whether it would be an undue hardship to accommodate her particular needs.

Whether an employee has a mental disability or a physical one, the employer is required to take action to meet the duty to accommodate. Such actions can include modifying a workstation, removing more taxing parts of the job or reducing hours The duty to accommodate requires that all possible measures be considered and taken to the point of undue hardship. These measures must be tailored to meet the particular needs of the disabled employee. However, the duty to accommodate is a “two-way street” and the employee also has responsibilities. For example, an employee must make his needs known to the best of his ability and participate in discussions regarding possible accommodation solutions. He must also answer questions or provide information regarding relevant restrictions or limitations (including information from doctors where appropriate and needed) and accept reasonable accommodation. (Note that “reasonable accommodation” does not necessarily mean “providing the disabled employee with the accommodation that she prefers.” For example, providing a wheelchair-bound employee with ramp access to the workplace rather than a technologically advanced lift system—as perhaps requested by the individual—is perfectly appropriate.)

A recent decision in Abrams v. Calgary Board of Education examined a complaint of discrimination on the ground of physical disability. Abrams, a teacher in the Calgary school system, was injured in two car accidents. As a result, he suffered from headaches, neck pain and strain and required pain medications. Daily driving was painful, and he has had difficulty shoulder checking. Abrams worked at a school that had a commute of less than 15 minutes. However, the School Board transferred him to a school requiring a 35-minute commute. He insisted that there was a 15-minute restriction on his driving, as supported by a doctor.

The Panel considered whether the teacher was disadvantaged in his job due to the travel restrictions but noted that travelling to work is not an activity specifically authorized by the employer. That is, it was not incidental to the employment or naturally connected to it because the employer did not direct anything with respect to how the employee would get to and from work. There was no connection then between the teacher’s employment and his requirement to travel to his employment. Thus, there was no contravention of the legislation when he was required to commute 35 minutes instead of 15. As there was no prima facie case of discrimination, the issue of accommodation was not addressed.

In another case, Alberta (Human Rights and Citizenship Commission) v. Federated Co-operatives Ltd.), an employee successfully brought a claim of discrimination against his employer. The employee alleged discrimination based on disability when his employer did not allow him to return to work following the period he was on long-term disability. The employer argued that the employee was not permitted to return to work because he had not provided the required medical information regarding his condition. The court found that the employer’s contention was not supported by the evidence. The court concluded that, in fact, the employer discriminated against the employee based on his disability, notwithstanding its repeated assertion that it would have accommodated him had it received the medical information it considered necessary. The employee did not accept that its actions constituted a bona fide attempt to acquire that information.

The challenges of dealing with disability become more manageable when employers are familiar with their rights and responsibilities. If employers approach disability in the workplace with an open mind and an understanding of the applicable laws, it will cease to be a source of anxiety and stress.

Tina Giesbrecht is a partner and Erika Ringseis and Michelle Papero are associates with Mc- Carthy Tétrault LLP in Calgary.

For a PDF version of this article, click here.