DISABILITY AND ACCOMMODATION IN THE WORKPLACE: THE EXPANDING OBLIGATIONS OF EMPLOYERS

By Brent Foreman - January 17, 2006

INTRODUCTION

Accommodation in the workplace is a matter of ever increasing importance for employers. It is a concrete issue, with real and often very challenging implications with which employers must deal on a daily basis.
The impact of accommodation issues upon employers is significant – effective accommodation measures may require the investment of substantial time, effort and money. Furthermore, the failure by an employer to deal effectively with accommodation issues in the workplace can have costly consequences, both in direct financial terms (for instance, damage awards imposed by judges) as well as in terms of distracting the employer from other pressing goals such as maximizing profitability and maintaining competitiveness.

THE SOCIETAL BACKDROP

Our workplaces, like society in general, have become complex. Employers are expected to demonstrate increasing sophistication, responsiveness and flexibility in the manner in which they deal with accommodation issues. This applies to both unionized as well as non-unionized employers. However, although all employers face accommodation issues, unionized employers perhaps have been at the forefront of these issues - the grievance and arbitration procedures available under collective agreements provide a readily available forum for the pursuit of accommodation issues by unions and employees.

Aspects of Canadian society contribute to the increasing importance of accommodation in the workplace. To begin, we live in a society with a steadily increasing awareness of, and emphasis upon, the rights of individuals in all areas. The advent of the Canadian Charter of Rights and Freedoms of course has been signifcant. While the Charter does not apply directly to private
sector employers, it has led to an ever more complex legislative framework governing all workplaces. Within that framework, individual rights play an increasingly important role.
Against this backdrop, several other aspects of Canadian society have contributed, and will continue to contribute, to the growing importance of accommodation in the workplace. These factors include, but certainly are not limited to, the following:
?? Canada is an ethnically diverse society in which the value of multi-culturalism has been espoused as a principle of fundamental importance;
?? demographic trends indicate that Canada must increasingly look to immigration as a means of maintaining a viable and vibrant population base;
?? with an aging population there is an attendant increase in health needs and disabilities;
?? our society increasingly recognizes the importance of effectively integrating individuals with disabilities into our day to day lives;
?? as the population ages, the issue of the accommodation of disabilities will only become more important; for instance, many individuals who formerly did not require accommodation will begin making demands to be accommodated as they age and face health challenges;
?? additionally, with an aging workforce, there is likely to be an increase in the proportion of those either choosing to work beyond "normal’ retirement age or finding themselves forced to do so out of economic necessity;
?? medical science is increasingly sophisticated, leading to an apparent increase in the identification and diagnosis of illnesses and disabilities which hitherto had not been understood or perhaps not even recognized;
?? similarly, there is a greater awareness and acceptance of mental conditions such as depression.
In short, there is little doubt that accommodation in the workplace will continue to be an issue of increasing importance for the foreseeable future.

THE LEGAL BACKGROUND

Section 5 of the Ontario Human Rights Code states the following in respect of employment:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
The duty to accommodate of course applies in respect of all grounds of discrimination enumerated under s. 5 of the Code. This paper will focus on issues related to disability.
Section10 of the Code contains a very extensive definition of "disability", as follows:
(a) 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 co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.
There are, however, other definitions of disability. For instance, s. 25 of the Canadian Human Rights Act defines "disability" much more simply, as follows:
"disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug;
Other approaches can be found in the jurisprudence. For instance, in Desormeaux v. Ottawa-Carleton Regional Transit Commission, an October 2005 decision of the Federal Court of Appeal, Linden, J.A. offered the following broad definition of what constitutes a disability that may require accommodation in the workplace:
"disability in a legal sense consists of a physical or mental impairment, which results in a functional limitation or is associated with a perception of impairment".
The Supreme Court of Canada has dealt with the issue of accommodation very extensively in a number of important judgments over the years. One such case is Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), a May 2000 decision. The commentary in that decision includes the following extensive discussion of what constitutes a handicap:
… it is clear that "handicap" as it is used in the Charter can include both an ailment, even one with no resulting functional limitation, as well as the perception of such an ailment…. I completely agree with Philippon J. that the ground "handicap" must not be confined within a narrow definition that leaves no room for flexibility…..
Given both the rapid advances in biomedical technology, and more specifically in genetics, as well as the fact that what is a handicap today may or may not be one tomorrow, an overly narrow definition would not necessarily serve the purpose of
the Charter in this regard….Instead, a multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a "handicap". In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes….Thus, a "handicap" may be the result of a physical limitation, an ailment, a social construct, a perceived limitation or a combination of all of these factors. Indeed, it is the combined effect of all these circumstances that determines whether the individual has a "handicap" for the purposes of the Charter….
Courts will, therefore, have to consider not only an individual's biomedical condition, but also the circumstances in which a distinction is made. In examining the context in which the impugned act occurred, courts must determine, inter alia, whether an actual or perceived ailment causes the individual to experience "the loss or limitation of opportunities to take part in the life of the community on an equal level with others"…. The fact remains that a "handicap" also includes persons who have overcome all functional limitations and who are limited in their everyday activities only by the prejudice or stereotypes that are associated with this ground. It is important to note that a "handicap" may exist even without proof of physical limitations or the presence of an ailment….The "handicap" may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the handicap, the cause and origin of the handicap are immaterial. Further, the Charter also prohibits discrimination based on the actual or perceived possibility that an individual may develop a handicap in the future.
Although the latter deals with the notion of "handicap" as that term is used in the Charter, the cases suggest that a similar approach is likely to be relevant to issues of accommodation arising under collective agreements covering employees in unionized private sector companies in Ontario.
RECENT CASES
This area of the law is very active, both in the unionized and non-unionized context. A number of interesting cases dealing with the accommodation of disabilities in the workplace have been decided over the last year. The following is a brief review of three of them.
(a) Keays v. Honda Canada Inc.
This judgment opens with the following statement:
"This wrongful dismissal action brings into sharp focus the tension between the expectations of the computer-programmed workplace and the obligations of human rights legislation, in particular the requirement to accommodate employee disability to the point of undue hardship."
The plaintiff was hired by Honda Canada at its production facility in Alliston in 1986. Shortly thereafter, he began to experience health problems, causing his attendance to suffer. He ultimately was diagnosed with Chronic Fatigue Syndrome ("CFS"). The judge found that the plaintiff’s absences "impacted on his ability to provide sufficient attendance to satisfy the "lean" operation mandated by Honda’s business philosophy". The judge also found that the plaintiff’s absences impacted upon the smooth operation of the plaintiff’s department and in turn, upon the smooth operation of the entire plant. He also noted that because there was no "slack" in the operation, the plaintiff’s responsibilities fell to his already busy co-workers.
The plaintiff’s condition deteriorated to the point that he went on disability leave from October 1996 to December 1998. The plaintiff eventually returned to work "under protest" when his LTD benefits were cut off by the insurer on the grounds that there was no objective evidence of total disability. As predicted by the plaintiff’s doctor, he was absent a number of times following his return to work. This ultimately led to the plaintiff being "coached" by his supervisors by way of a written report, which was the first step in Honda’s progressive discipline process. He subsequently was placed in a "special program" (characterized by the judge as a "phantom program") at Honda which exempted disabled employees from attendance-related progressive discipline based on disability. However, this accommodation of the plaintiff (i.e. the
recognition that his disability was a legitimate excuse for his absences) led to new problems for him. He was required to validate each absence by obtaining a doctor’s note for each and every occurrence. The court found that this requirement "[defied] the nature of CFS" since there is no specific diagnostic test to identify it. Consequently any medical notes would be based solely on self-reporting by the plaintiff of his inability to attend work due to his condition. Furthermore, the court noted that employees with "mainstream illnesses" were not required to obtain such notes. As well, the court noted that because the disability had to be medically "confirmed" through notes from the plaintiff’s doctor, it had the effect of prolonging the plaintiff’s absences. The court found that when the plaintiff attempted to discuss these concerns with his supervisors, they "stonewalled" him.
The judge noted that the situation caused the plaintiff to experience frustration which in turn created stress which aggravated his symptoms and led to more absences than had been predicted by his doctor. This resulted in Honda requiring the plaintiff to meet with the company’s medical staff. The court found that this meeting "had extremely negative consequences" in that the doctor threatened to have the plaintiff moved back to a physically demanding production line position which would only exacerbate his condition (the court rejected the doctor’s evidence that there was no threat and that he had merely engaged in "brainstorming" with the plaintiff).
The plaintiff ultimately retained legal counsel out of concern that his situation would lead to his dismissal. However, Honda did not respond to the correspondence it received from the plaintiff’s lawyer (which correspondence was characterized by the court as "conciliatory in the extreme"). The court found that Honda had an "unwritten policy of…discouraging the participation of any third-party advocates on behalf of [employees]", which policy was a component of Honda’s successful strategy to avoid unionization.
Honda engaged an occupational medicine specialist who was asked to review the plaintiff’s file to determine whether his absences were justified. As part of his assessment of the situation, this specialist asked to meet with the plaintiff. Honda advised the plaintiff that if he did not cooperate by meeting with the specialist, he would be fired. On the advice of his lawyer, the
plaintiff refused to meet unless Honda first clarified the "purpose, methodology and parameters" of the assessment. Honda did not respond and a stand-off ensued. The plaintiff ultimately was terminated in March 2000 for insubordination for failing to meet with the specialist.
The court’s findings and conclusions included the following:
• it was reasonable for the plaintiff to refuse to meet with the specialist when Honda refused to clarify the nature and purpose of the visit;
• the termination was "totally disproportional" to the alleged insubordination;
• the plaintiff, who had almost 14 years of service, was entitled to 15 months pay in lieu of notice as a result of such unjustified termination (of significance to the court was the fact that Honda had a relatively flat management structure with an egalitarian approach where there was no apparent distinction between the president of the company and the "associates" on the production line);
• due to the "egregious bad faith displayed by Honda in the manner of this termination and the medical consequences flowing therefrom" the notice period should be extended to 24 months (i.e. an increase due to the application of "Wallace" factors);
• in addition, the plaintiff was entitled to punitive damages in the amount of $500,000.00.

This case demonstrates how strategies that employers often employ in situations involving disabled employees (such as, for instance, requiring that the employee provide medical notes to justify every absence) can lead to adverse judicial reactions in some scenarios. It also demonstrates just how high the stakes can be in an accommodation case. Clearly, it is essential that care be taken in dealing with disability in the workplace, particularly in cases involving rare and unfamiliar chronic illnesses, such as CFS, where the diagnosis may not be clear or definitive or where the symptoms are unusual and perhaps even result in some skepticism on the part of the employer.
(b) Kemess Mines Ltd. v. International Union Of Operating Engineers (B.C. Arbitration Board)
The grievor was employed at a remote open pit mine in British Columbia. Employees were flown in to work for 14 consecutive days and then flown out for 14 days off. The relevant legislation regulating the operation of the mine included the requirement that no person shall possess intoxicating liquor or illegal drugs "in or about a mine". There was no dispute that the mine was a very safety-sensitive operation. This had prompted the employer and the union to jointly issue a bulletin alerting employees to the fact that drug use or possession on mine property was a serious offence and that the employer viewed it as justifying dismissal. In a separate joint publication, the employer and the union confirmed that the employer had a "zero tolerance" policy in respect of drugs and alcohol and that employees would be terminated if found using or possessing drugs or alcohol on company property. Additionally, in January 2001, an arbitration between the company and the union had been settled under the auspices of an arbitrator, who published the settlement as a consent order, which order was posted on bulletin boards throughout the mine property. The order indicated that the employer and the union confirmed that there was a zero tolerance policy and that the penalty for its breach was termination.
The grievor was caught smoking marijuana in his room on the mine property. He acknowledged he was aware of the policy. He also admitted that despite such awareness, he had smoked marijuana on company property every day throughout his 6 years with the company.
The latter filed a grievance following his termination, seeking reinstatement. The Union’s argument in support of the grievance was that the grievor was addicted to marijuana and that such addiction resulted in his termination. There was extensive medical evidence put before the arbitrator, including an unchallenged diagnosis submitted on behalf of the grievor indicating that he suffered from a cannabis dependency.
The findings and conclusions of the arbitrator included the following:
• the case was "hybrid" in nature in that the grievor’s misconduct was a mix of culpable and non-culpable elements; that is, the grievor’s conduct was "partly

as the result of choices made by the grievor, and partly the product of substantially diminished control due to the grievor’s addiction (i.e. disability);
• "one must be careful not to permit the culpable elements in the mix of facts to automatically or even presumptively overwhelm the non-culpable elements giving rise to the human rights analysis"
• as it was a hybrid, the issue of the duty to accommodate had to be addressed "in respect to the non-culpable portion of the facts";
• in a hybrid context, where a duty to accommodate is found to exist, such duty should be "conditioned to an appropriate degree by the employee culpability that has been found to exist, as well as the by the employer’s interests generally";
• in this case, the duty to accommodate existed to the point of undue hardship in respect of the grievor’s disability and to the extent such disability contributed to the grievor’s misconduct;
• the employer’s legitimate interests, like the grievor’s, could be accommodated short of upholding the dismissal; as well, the culpable elements must find meaningful expression in the remedy awarded;
• accordingly, the grievor should be reinstated, with the time off to the date of such reinstatement to be characterized as an unpaid disciplinary suspension; as well, such reinstatement is subject to the grievor satisfying several conditions, including a requirement that he successfully complete substance abuse treatment.

As this case demonstrates, the ability of employers to enforce "zero-tolerance" policies in regard to alcohol and drug use is becoming increasingly difficult, even where there are compelling safety reasons for such policies, and even in the face of knowing and apparently wilful disobedience on the part of an employee. Similarly, the fact that there may be statutory requirements that justify such policies will not necessarily relieve an employer from the obligation to accommodate employees who breach the policy.
(c) Desormeaux v. Ottawa-Carleton Regional Transit Commission
Francine Desormeaux was a full-time bus driver who had worked for Ottawa-Carleton
Transit ("OC Transpo"). She had many health problems, causing her to miss a total of 365 full days and 24 part days for various reasons during her 9 year tenure, including 57 full days and 11 part days due to migraine headaches. Ultimately, the Employer dismissed her for chronic (innocent) absenteeism.
Ms. Desormeaux filed a grievance under the collective agreement. The grievance was dismissed, with the Arbitrator finding that despite the fact Ms. Desormeaux had for the most part been absent for bona fide medical reasons, "an employer is entitled to regular attendance from an employee as a condition of the employment relationship". The Arbitrator concluded that through no fault of her own, Ms. Desormeaux was unable to "perform her end of this employment bargain".
Ms. Desormeaux then filed a complaint before the Canadian Human Rights Commission. The complaint ultimately proceeded before a Tribunal which concluded that there was prima facie discrimination on the grounds of disability, with the disability being in the nature of migraine headaches. The Tribunal concluded that the requirements of the test of disability set out by the Supreme Court of Canada in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) [referred to above] had been satisfied since her condition was "chronic, significantly incapacitating and periodically interfered with her ability to do her job". The Tribunal also found that OC Transpo could accommodate Ms. Desormeaux without undue hardship.
The Federal Court of Appeal upheld the Tribunal’s decision. It concluded that in light of the tests established by the Supreme Court of Canada for what constitutes a disability, there was evidence before the Tribunal upon which it reasonably could find that there was in fact a disability in this case because of the headaches, whether they were "migraine headaches, migraine/tension headaches or some other type of severe headache condition". Once having concluded that there was prima facie discrimination, it then was necessary to determine whether OC Transpo’s standard of "reasonable and regular attendance" was a bona fide occupational requirement ("BFOR"). The Tribunal applied the three stage test set out by the Supreme Court
of Canada in its 1999 decision in Meiorin for determining a BFOR. That three stage test is as follows:
i. was the requirement adopted for a purpose rationally connected to the performance of the job?
ii. was the requirement adopted pursuant to an honest and good faith belief?
iii. was the requirement reasonably necessary to the accomplishment of the legitimate work-related purpose, with the standard being considered "reasonably necessary" if the employer can demonstrate that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship on the employer.
The Federal Court of Appeal upheld the finding of the tribunal that OC Transpo’s standard of "reasonable and regular attendance" did not satisfy the test for a BFOR under Meiorin. The Court concluded that the Tribunal was correct in concluding that the employer had a duty to accommodate the employee’s ongoing, intermittent absenteeism.
In fairness, it should be noted, however, that the Court also stated the following:
"There is nothing in the Tribunal’s decision to require employers to indefinitely maintain on their work force employees who are permanently incapable of performing their jobs. Nor are employers required to tolerate excessive absenteeism or sub-standard performance. On the unusual evidence in this case, this complainant is fully capable of doing her job, when she is not suffering from one of her periodic headaches. Moreover, her future rate of headache-related absenteeism is predicted to be at a level which her employer could easily accommodate without undue hardship [there had been evidence accepted by the Tribunal that Ms. Desormeaux and her doctor felt her headaches were coming under better control with treatment at the time of the hearing]. The employer has therefore merely been required to reasonably accommodate her as mandated by the Canadian Human Rights Act and according to the legal test of undue hardship established in Meiorin."

RECENT LEGISLATIVE CHANGES

The Ontario Human Rights Code recently was amended so as to generally prohibit employers from forcing employees to retire upon reaching age 65. This prohibition will take effect December 12, 2006.
Specifically, the amendment changes the definition of "age" by eliminating the current reference to age 65 (that is, "age" will be defined simply as "age that is 18 years or more"). Accordingly, when the new definition becomes effective, mandatory retirement at age 65 (or for that matter at any other age) will be permitted only if such can be shown to be a BFOR in accordance with the test set out in Meiorin.

SUMMARY

Accommodation challenges in the workforce are a daily reality for employers. Employers who do not devote the necessary care, time and effort to meet the full extent of their accommodation obligations risk significant legal liability.