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Withdrawing arrangement to accommodate disability a bad and expensive idea

Image: workrelationships.wordpress.com

Image: workrelationships.wordpress.com

I recently read an excellent case that sends a strong message to employers who attempt to abruptly change telecommuting arrangements, especially in the case where the employer had been previously accommodating the employee due to a physical disability. Simply put, it is a really bad idea, one that could cost at least $18,000.

There are two aspects of this case that are, in my view, worth noting:

The employer changes the telecommuting arrangement and employee endures harassment – awards against the employer

Essentially, the employee never had any health issues prior to working with the employer. One month after beginning work, she began to experience unexplained fatigue and sinus headaches. When she got home, she would start to feel better. The symptoms would return whenever she attended the office. She saw a doctor familiar with environmental medicine who began to answer some of her questions. She did not get a doctor’s note, but explained to her supervisor the situation and asked if she could work from home.

Initially, she worked three days a week from home. (She did not want to cause any tension so she did not complain that the days in the office were making her ill.) At no point did the employer conduct any type of examination of the building’s air quality or ventilation system.

Upper management did not like telecommuting and wanted to have all employees working from home return to the office. The employee’s supervisor explained that the employee was working from home due to health issues. In the end, the arrangement they agreed on was that the employee would work from home only two days per week instead of three.

The employee’s health continued to deteriorate and she had to request to work from home full-time. Her supervisor said he could not do anything more for her because of management’s position about telecommuting.

Eventually, management wanted the employee to return to the office full-time and stated the telecommuting arrangement was to be terminated. The employee simply could not agree because she was already suffering with the current arrangement. Her supervisor assisted and suggested that she obtain a doctor’s note saying it was medically not possible to work in the office.

The employee got a doctor’s note. At that point, she was working from home full-time except to attend a few brief meetings here and there.

The employee began to feel much better once she began working from home full-time. That said, she noticed that her experiences at work over the years led to food allergies she never had before and she was more susceptible to viruses and insomnia.

Things were going well until another supervisor took over. This new supervisor was confrontational about the employee working from home. The employee reiterated that she could not work in the office without risking damage to her health. The communications between the new supervisor and the employee caused stress, anxiety and further deterioration of the employee’s health.

Suddenly, the new supervisor informed the employee that the employer would be charging her one hour of sick leave for her weekly visits to her doctor for allergy shots. What’s worse, the supervisor then assigned new tasks to the employee and demanded that the employee return to the office to complete them. The supervisor claimed that the division was being reorganized, and had not even consulted the employee before deciding what the new tasks would be on the supposed return to the office.

The employee clearly indicated that she did not agree, that it was contrary to her physician’s recommendations, and that the same air circulated through the entire complex so the place they wanted to put her would be similar. The new supervisor insisted that the employee report to work in the office.

The employee contacted her union and got another doctor’s note from a different doctor stating that she was sensitive to air pollutants in buildings equipped with mechanical ventilation systems, even when the air quality is normal according to accepted standards. Those standards were not adapted to persons with environmental hypersensitivity. The employee had to continue to work from home because her level of sensitivity had not decreased despite treatment. Therefore, it was likely that she would continue to experience similar health problems if she worked in other similar buildings. Consequently, she should be authorized to continue to work from home.

The employee personally handed the medical certificate to her supervisor. The supervisor asked the employee:

  • To establish the possible date of her return to the office so that she could fully perform the tasks of her job
  • In regard to the medical certificate, to provide another medical evaluation, indicating the approximate date of her return to work in an office equipped with the employer’s ventilation system, providing an opinion on the feasibility of a return to work in the near future, indicating whether the employee was able to handle her full workload, indicating whether the employee was able to attend meetings from time to time, and establishing the possible locations of those meetings
  • For written consent for the employer to consult relevant resources in the medical field, including Health Canada, to determine the accommodations to make

So the employee went back to the doctor and asked for a more detailed medical certificate reiterating what was already stated in the other letter. She gave this letter to her employer too, and asked to be reimbursed for the $300 cost of the certificate. The request was refused.

At this point, the employee filed a grievance and alleged:

  • The employer discriminated against her by failing in its duty to put in place and to maintain accommodation measures for her physical limitations
  • Her new supervisor and the supervisor’s supervisor harassed her
  • The employer and its representatives violated the collective agreement and the Canadian Human Rights Act

The employer decided that the employee report to someone else up to the time of the hearing. This person was “fully satisfied” with the employee’s work.

The Public Service Labour Relations Board ended up awarding the employee $8,000 for the pain and suffering she experienced, and $10,000 in the form of a special award. In addition, the employee was entitled to receive from the employer $300 for the medical certificate she was asked to provide after already providing one.

The board made it clear that the employer failed in fulfilling its duty to accommodate the employee. The duty to accommodate includes procedural aspects; the employer had to seriously examine how it could accommodate an employee. This involved first obtaining all relevant information about the employee’s disability, and second working with the employee to see how he or she can be accommodated. Plainly put, failing to give any thought or consideration to accommodation is failing to satisfy the duty to accommodate.

The board could not fault the employer when the employee did not want to “rattle the cage” when she did not raise her condition as an issue regarding her working a couple days in the office at the beginning of her employment. This was also true when the employer allowed the employee to work full-time in attempt to accommodate her disability. Up to that point, the employer met its duty to accommodate.

The problems started when the employee’s supervisor retired and the employer seemed to change its attitude. The new supervisor, with full knowledge of the circumstances, actually told the employee that she did not like her working from home and she was against it. The board stated, “That was the employer’s first failure of its duty to accommodate”. The employer was required to make prolonged efforts to meet the duty to accommodate. As the board stated, the new supervisor did “exactly the opposite”. Instead, she “questioned the existing accommodations simply because of her own organizational preferences, without attempting to understand the employee’s limitations.

The board commented on the supervisor’s next decision, adding new tasks that would force the employee to return to the office. It stated that the supervisor never consulted the employee before deciding to change her tasks and terminate the telework arrangement.

That amounts to another failure by the employer of its duty to accommodate. Rather than making sustained and prolonged efforts to accommodate (the employee), (the supervisor) proposed putting measures in place that were precisely contrary to accommodating (the employee).

There was no evidence that major organizational requirements justified this decision to terminate the accommodation.

The board also commented on the next decision to ignore the medical certificate and require a new one. Rather than discussing with the employee the accommodations and limitations arising from the new medical certificate, the supervisor asked the employee for another medical certificate. “Once again, the employer failed in its duty to accommodate (the employee) … in addition, she was required to obtain a new medical certificate but was not told that she would have to assume the associated costs”.

The board concluded that when the employer failed to accommodate the employee’s physical disability, it violated the Canadian Human Rights Act and the collective agreement.

There was just not enough evidence to prove harassment on the ground of disability against any supervisor. The board found that they had been insensitive, but not harassing. That said, they were involved in the discrimination against the employee.

The lesson here is clear: the duty to accommodate is not only something that must be met initially. The employer must not take away accommodations that allow the employee to continue working.

Environmental sensitivity constitutes a physical disability

Another interesting aspect of this case is that the Public Service Labour Relations Board clearly confirmed that the employee was suffering from a physical disability under both the Canadian Human Rights Act and the collective agreement. The board accepted the employee’s evidence that she suffered from environmental hypersensitivity and her symptoms first appeared when she started working with the employer.

For some asthma sufferers with environmental triggers like me, this finding is especially welcome and a long time coming. It only makes sense that if the environment (in this case poor air quality and ventilation systems in the building) is the trigger that is causing and aggravating a physical disability, the employer has a duty to accommodate the employee to the point of undue hardship. It is only a matter of time before this principle now confirmed in the federal sphere becomes unquestionably and consistently recognized at the provincial level within the various human rights decisions of the tribunals. In line with several previous human rights advancements, labour boards have led the way again.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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