July 26, 2010
Publication Added: Addiction Not Causal Factor in Employee’s Misconduct, Therefore, No Discrimination
July 16, 2010
Evans, Philp to welcome two articling students, Tara Mimnagh and Alfred Cheng, on August 9, 2010
July 16, 2010
Robert Rogers will be presenting at the 6th Annual Update: Personal Injury Law and Practice Conference on September 16, 2010.
July 16, 2010
Mark Zega and Jane Gooding present at 62nd OMC Annual Conference on Labour Relations-Issues and Trends
July 16, 2010
Evans, Philp participating in fundraiser in support of Big Brothers on August 18, 2010

EVERYDAY ILLNESS NOT A “DISABILITY” REQUIRING CODE BASED ACCOMMODATIONS

January 11, 2010

In a recent case, Anderson v. Envirotech Office Systems, the Human Rights Tribunal of Ontario found that the Employer did not discriminate against an employee who claimed that his bronchitis was a disability under the Human Rights Code of Ontario requiring workplace accommodations.

The employee was required to work with various chemicals and glue as part of his regular duties and responsibilities.

The employee became ill at work having difficulty breathing, a cough, headache and chest pain.His physician provided a note which stated the following: “This is to certify that [the employee] has been ill with bronchitis and unable to attend work since the 14^th of April 2008.He should be able to resume regular duties 21^st of April 2008.”On April 23, 2008, Mr.Anderson complained to his employer that the glue spray he was using was causing him nasal congestion; he requested that he be relocated to another work area.On the same day, the Employer informed the health and safety representative about the complaint.

The Applicant’s employment was terminated on May1, 2008 for unrelated reasons relating to poor workplace performance.

Mr. Anderson filed an Application before the Tribunal alleging that the Employer had discriminated against him: a) by failing to accommodate his request to be relocated from the chair shop and b) by terminating his employment, in part, because of complaints about fumes in the chair shop.

DECISION

One of the central issues before the Tribunal was: is bronchitis a disability under the Human Rights Code which requires workplace accommodation?

In addressing whether the bronchitis was, in fact, a disability under the Code, the Tribunal noted that “disability” is defined under section 10 of the Code to include: “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes, mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, physical reliance on a guide dog or other animal or a wheel chair or other remedial appliance or device”.

The Tribunal notes that while the jurisprudence concerning what constitutes a “disability” has been inconsistent, not all illnesses have been found to constitute a “disability” under the Code.That was affirmed in Ouimett v. Lily Cups Limited in which a Board of Inquiry (under the former process) found that common flus experienced by everyone from time to time was not a disability.In this case, the Board stated that to include commonplace illnesses under the ground of “disability” would trivialize the Code’s protections.

The Tribunal also notes that while Courts have applied a “broad and contextual definition” to the notation of “disability”, everyday illnesses have been excluded from the definition.As per the Supreme Court of Canada’s decision in Quebec (Commission) des droits de la personne et des droits de la Jeunnesse vs. Montreal (City) the Court emphasized that “disability” under the Code must present obstacles to full participation in a society rather than a condition or state of the individual ailments, i.e., a cold or personal characteristics, will necessarily be excluded from the scope of “handicap”.

The Tribunal ultimately concludes on the evidence before it that Mr. Anderson’s bronchitis was neither chronic nor would it become a chronic condition.The bronchitis experienced by Mr. Anderson was noted by the Tribunal as commonly experienced by many and did not impact his ability to participate fully in society.The Tribunal, therefore, concludes that the Applicant’s bronchitis was not a disability under the Code requiring statutory accommodation.

WHAT DOES THIS MEAN?

This recent decision by the Tribunal reaffirms some important considerations:

Not every illness is a disability. Transient illnesses (i.e., cold, flu or bronchitis) are not likely a disability under the Code and as such, do not require Code based accommodations.
The employee must establish a disability under the Code.
The employer must make every effort to reasonably accommodate the employee, short of undue hardship, to the workplace if an employee does suffer from a disability.
Employers should clearly outline the information that is expected of employees in the event that an employee is absent from the workplace and is seeking accommodation.
It is also prudent to have a written policy which is consistently applied to cases where an accommodation is requested.

Employers who require assistance in drafting such policies or addressing employee accommodation requests can contact members of our Labour and Employment Department.