Elsa Torrejon was diagnosed in early 2009 with breast cancer. After telling her employer about her illness and requesting an indefinite leave to receive treatment, she found herself dismissed and fighting for her human rights.
On July 12, 2010, the Human Rights Tribunal of Ontario awarded Torrejon $22,640 for general damages and lost wages after ruling that her former employer discriminated against her on the basis of disability when it fired her days after she told them about her diagnosis.
After being dismissed, Torrejon wrote a letter to her supervisor setting out the requirements of the Human Rights Code to accommodate workers with disabilities. He testified that he did not read that letter at the time, and only looked at it two days before the hearing of this matter. He also testified that he failed to educate himself on the provisions of the Code.
In addition, the supervisor erroneously believed that under the Employment Standards Act, he had no obligation to accommodate any period of a disability-related leave. The judge set him straight:
The employer had “a duty to make an individualized assessment of whether it could accommodate the applicant, which it failed to do. The respondent did not lead evidence at the hearing that it could not accommodate the applicant’s absence.”
As we say in legal circles, Ignorantia juris non excusat.
In English: ignorance of the law is no defence! The legal principle being that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content.
Applying this principle to this case: an employer that does not educate itself about its obligations under the Human Rights Code, and any employment-related law and how they work together will not be successful in arguing it does not have to accommodate an employee to the point of undue hardship.
This is why training and education are so important for those who manage employers’ human capital. In addition, staying abreast of changes in the law or it’s application is even more important.
The Ontario Human Rights Commission ordered the employer to ensure its employees completed the commission’s online course, Human Rights 101, and to confirm in writing that they had indeed completed the training.
So what should the employer have known about dealing with an employee who is ill? Here is a brief overview:
In Ontario, even if the Employment Standards Act is silent about sick leave, and does not require an employer to provide paid sick leave, employers with 50 or more regular employees must provide eligible employees with 10 unpaid days of personal emergency leave each calendar year.
Personal emergency leave can be taken for the following reasons:
- Personal illness, injury or medical emergency
- Death, illness, injury, medical emergency or urgent matter relating to the following family members:
- A spouse (including both married and unmarried partners, of the same or opposite sex)
- A parent, step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
- The spouse of an employee’s child
- A brother or sister of the employee
- A relative of the employee who is dependent on the employee for care or assistance
Note that employees are not entitled to personal emergency leave for medically unnecessary cosmetic surgery unrelated to an illness or injury. An employer is allowed to ask an employee to provide evidence that he or she is eligible for a personal emergency leave. The employee is required to provide evidence that is reasonable in the circumstances.
Employees cannot carry over unused personal emergency leave days to the next calendar year. The 10 days of personal emergency leave do not have to be taken consecutively. Employees can take personal emergency leave in part days, full days or in periods of more than one day. If an employee takes only part of a day as personal emergency leave, the employer can count it as a full day of leave.
Employers with 49 or fewer employees are not required to provide personal emergency leave, but may do so if they wish. However, where an employee is absent from work because he or she is suffering from an illness or disability, the employer does not have just cause to summarily terminate the employment relationship simply by reason of the employee’s absence. The absence from work due to illness or disability does not breach the contract. However, a long absence may “frustrate” the employment contract, which can discharge the parties’ respective obligations under the contract. In cases where an employee suffers an obvious permanent illness or disability, and the condition prevents the employee from carrying out his or her job requirements, frustration of the employment contract is clear.
However, no matter the size of your business, under the Ontario Human Rights Code, all employers have a duty to accommodate an employee’s disability, illness or injury to the point of undue hardship, and the employee has a duty to co-operate and communicate with the employer during and after the accommodation process has been established.
Accommodation will often include a leave of absence to allow the employee time to deal with and recover from the illness. There is no fixed rule as to how long a disabled employee may be absent before the employer meets its duty to accommodate. Human rights commissions indicate that it depends on the employee’s ability to resume performing the essential duties of her or his job, considering the unique circumstances of every absence and the nature of the employee’s condition.
Nothing in law requires you to provide a paid leave of absence unless you have a policy or insurance benefits that says otherwise.
Factors that employers must consider when dealing with employee absences due to illness are:
- Predictability of absences both: when they will end and if they might recur
- The frequency of the absence; the employee’s prognosis and length of absences (it is more likely that the duty to accommodate will continue with a better prognosis, regardless of the length of absence)
- The nature of the business and the operational needs
When dealing with an illness that will exceed three days, you should always ask the employee’s doctor to provide you with a prognosis of impairment, to confirm:
- The existence of a disability (without getting a specific diagnosis)
- If and how long the employee will need to be absent from work
- How long the impairment will last (permanent or temporary)
- What you can do to accommodate the employee’s impairment and allow the employee to continue to work
- How long you need to accommodate the impairment
An employee with a disability should be assessed in terms of his or her ability to perform essential duties of the job, and cannot be judged incapable of performing them until efforts have been made to accommodate him or her up to the point of undue hardship. The first step to accommodation is to distinguish the essential from the non-essential duties of the job (although courts and other decision-making bodies have provided little guidance on how to do this). Where possible, non-essential duties should be re-assigned to other employees.
An employer shouldn’t determine that a disabled employee is unable to perform the essential duties of a job without actually testing the person’s abilities. It is not enough for the employer to assume that the person cannot perform an essential requirement; rather, it must determine that fact objectively. The most appropriate accommodation is the one that meets the individual’s needs, promotes the employee’s integration and encourages full participation in the workplace and ensures dignity and confidentiality.
Case law is clear that the employer has to determine whether there are different ways the employee could perform the work while still accomplishing the employer’s legitimate work-related purpose. As much as possible, the employer must respect the skills, capabilities and potential contributions of the disabled employee.
According to most human rights commissions’ policies on accommodation, integration in this context means inclusiveness: taking steps to facilitate the employee’s equal participation in the workplace, as opposed to creating a separate system to accommodate the employee’s needs.
The Supreme Court of Canada states that the employer has a legal obligation to show that it has considered all viable forms of accommodation. If an employer rejects these forms, it must be able to show why each rejection was reasonable.
There are some limits to employers’ obligation to accommodate. For example, an employer is not required to create a new position to satisfy the needs of the employee. Nor is an employer required to maintain a position indefinitely for an employee who cannot attend work due to a disability.
Employers are permitted to terminate an employee’s employment where the employment duties have become impossible to perform or the contract has been frustrated by a fortuitous or unforeseeable event or circumstance. If an employee is unable to perform her or his pre-disability job, and there is no chance in the foreseeable future for the employee to do so, the courts have stated that an employer would have the right to dismiss.
However, before terminating, you must ensure you have done everything possible to reasonably accommodate the employee to the point of undue hardship, and you must have medical evidence indicating that the employee cannot do the job he or she was hired for and will not be able to for the foreseeable future or permanently.
You should also remind the employee that he or she has an obligation under human rights to communicate with you and co-operate in the accommodation process and during the leave of absence.
Human Resources and Compliance Managing Editor