Human Rights in the Workplace

Lack of accommodation on return to work has food service company eating crow

In Tofflemire v. Metro (Windsor) Enterprises Inc., the Human Rights Tribunal of Ontario examined the efforts made by a food and drink services company to accommodate a long-serving employee upon his return-to-work after having a heart transplant.  The Tribunal determined that the company's efforts were woefully inadequate and awarded damages to the employee as a result.

The Facts

Mr. Tofflemire began working for Metro Enterprises in 1981.  His work involved driving a mobile catering truck on designated routes selling food and drinks at construction job sites.  Mr. Tofflemire also happened to have a history of heart-related problems and required modification to his job from April to September 2006, which the company provided. 

In mid-September 2006, Mr. Tofflemire left work to have a heart transplant, which ultimately took place in June 2007.  While he was recovering from his surgery, Mr. Tofflemire maintained contact with his employer and Metro expressed the desire to see their employee return to work. 

In March 2008, Metro wrote to Mr. Tofflemire's doctor asking him to identify which functions of the mobile catering job Mr. Tofflemire could perform.  The doctor advised that the employee would require a modification to his duties that would limit him from lifting no more than 10-15 pounds initially but then Mr. Tofflemire could increase the lifting weight as he was able to tolerate it.  Further, the doctor recommended the following return-to-work schedule:

• initial return-to-work for 2 hours per day for one month;
• move to four hours a day for a further month until Mr. Tofflemire was able to work a full eight hour day.

Mr. Tofflemire returned to work on April 7, 2008.  He worked two hours a day for one week in the stock-room.  He next returned to work on June 9, 2008 and worked in the stock room for two hours a day for a period of two weeks.  The employer then took the position that there was no further available work for Mr. Tofflemire in the stock room. 

So, Mr. Tofflemire expressed a desire to be transferred to the company's vending machine division which would involve supplying food and drinks to vending machines at a number of locations. He held the view that the vending machine position would be less stressful than his catering truck position.  There were six permanent jobs in the vending division, all filled by long term employees.  There was, however, a summertime replacement position held by a person who was hired at the beginning of the summer of 2008 and, given Mr. Tofflemire's seniority, he knew he could bump this person.  Mr. Tofflemire was fully aware that this was a temporary position but he was prepared to do the job for that temporary time period and then resume discussions with Metro about how he could be accommodate further after the job ended.  Mr. Tofflemire obtained a letter from his doctor stating that by the end of June 2008, he was medically cleared to work a 7 hour day.

In early July 2008, Mr. Tofflemire met with his employer to discuss his return to work.  During the meeting, Mr. Tofflemire said he was told by the company's President that the vending division had no job for him and that he would have to go back to the catering division.  The President recalled that the company had, instead, asked Mr. Tofflemire to provide a functional analysis form to indicate he was capable of carrying out the job functions of the vending position but this was never provided.  Mr. Tofflemire denied being asked to complete such a form.

On July 27, he filed a grievance alleging that the company had not reinstated his employment even though he had been cleared to return to work by his doctor.  The next day, the company wrote to Mr. Tofflemire offering him a customized seven hour per day mobile catering route.  During the grievance process, the company indicated that they did not want to assign Mr. Tofflemire to any position in the vending division.  Ultimately, the union concluded that Metro's job offer of the modified catering position was reasonable in the circumstances.

On July 31, Mr. Tofflemire wrote to his employer to say he would consider the proposed job offer after seeing his doctor on August 5 and that he would be in contact with them the week of August 11.  On August 5, Mr. Tofflemire's doctor wrote to Metro advising that Mr. Tofflemire should neither take on a job that required 10 hour days nor should the job involve long periods of exposure to the sun (as long exposure to the sun increased the risk of skin cancer in transplant patients).

Subsequently, the company's President met with Mr. Tofflemire's union representative.  But, the President simply advised that transfers between divisions were not possible.

On August 18, 2008, the employer wrote to Mr. Tofflemire to state that they had not heard anything from him.  They advised that they were taking his lack of response to mean that he had turned down their job offer, was no longer seeking his job, seniority or other rights and, as a result, they considered his file to be closed.  Metro did not, however, take steps to formally sever Mr. Tofflemire's employment after sending this letter and at no point issued a Record of Employment.

Mr. Tofflemire alleged that Metro Enterprises and its President, in his personal capacity, discriminated against him in employment on the basis of disability in that it failed to provide him with reasonable accommodation when he sought to return to work following his surgery.  He also contended that the failure of Metro to issue a Record of Employment was also discriminatory as it deprived him of his rights to collect termination and severance pay under Ontario's Employment Standards Act.

The company and its President asserted that its July proposal to have Mr. Tofflemire return to a modified mobile catering route position was reasonable accommodation.  It was Metro's view that the job had shortened hours (7 hours), was less stressful and although it required Mr. Tofflemire to be outside that did not necessarily mean he would be exposed to an undue amount of sun as he could use sunscreen, wear protective clothing and park his truck in a shady area.  The company, in essence, argued that it would be an undue hardship for it to place Mr. Tofflemire in the vending division.  It was pointed out that transfers into the vending division had become less attractive over time because layoffs from the vending division would be done on a seniority basis and someone coming into that division could lose their job if they were junior to current members in the vending division (due to the vending division operating under a different collective agreement).  Concern was expressed that existing vending division employees might come to resent the accommodation of Mr. Tofflemire in that division.  The company noted that it was also at the point of downsizing the vending division from six to three positions.  Finally, the company took the position that there was a general economic downturn that was impacting the company's financial status and if they had to create another position in the vending division to accommodate Mr. Tofflemire, it would have cost $53,000 in salary at a time when the company was losing money. 

The Decision

The Tribunal concluded that if the company had not received the August 5 doctor's letter indicating that Mr. Tofflemire needed to avoid long term sun exposure, this complaint would not have succeeded.  The Tribunal indicated that as the proposed mobile catering position included modifications regarding the length of hours to be worked (reducing them from 10 hours to 7) coupled with changes to decrease the stress of the job it would have, absent the doctor's letter, met the duty to accommodate.  But, the doctor's letter was found to have changed Mr. Tofflemire's circumstances and required the company to re-examine its accommodation proposal.  However, after receiving the August 5 doctor's letter, the Tribunal determined that the company did little to reconsider its position, failed to meet with Mr. Tofflemire and, instead, wrote its August 18 letter saying they were closing his file. 

According to the adjudicator:

"...the respondents did not want to reconsider whether their offer of a modified catering job was reasonable or to reconsider the applicant for any position in the vending division because they believed this might entail further difficulties for them.  I believe that they felt their best strategy to manage the situation was to end the discussion on accommodation with the applicant, as demonstrated by their August 18 letter."

The Tribunal rejected the company's argument of undue hardship pointing out that all of the concerns that had been raised related to a permanent transfer of Mr. Tofflemire into the vending division.  However, Mr. Tofflemire was only seeking to be considered for the temporary summer job available in that division.  The company had not raised any undue hardship issues relating to that proposal.  Concluding that the company and its President had made inadequate efforts to reconsider the ability to accommodate Mr. Tofflemire in light of the August 5 doctor's letter, the Tribunal pointed out:

"A reasonable accommodation in these circumstances could well have been to place the applicant in the temporary summer position.  It is true that this would have only been a short term solution but it was an alternative the respondents did not meaningfully pursue after receiving the August 5 letter.  In taking no substantive action the respondents failed both in terms of procedure and substance to meet their duty to accommodate the applicant." (emphasis added)

In terms of remedy, the Tribunal ordered that the company and its President pay Mr. Tofflemire $7,500 in general damages and, in addition, lost wages.  The company was also ordered to resolve his employment status and provide any entitlements under the Employment Standards Act.

What to take from this case:

The Tribunal's decision is a great reminder to employers that the duty to accommodate employees is an ongoing one.  If there is a change in an employee's circumstances, an employer must reexamine the accommodation that has already been put in place for the employee or that has been proposed in order to determine whether it meets the revised needs of the employee.  A failure to do this can lead to a finding that reasonable accommodation has not been provided. 

Knee-jerk reactions to an employee's accommodation proposals should also be avoided.  To be able to successfully assert undue hardship associated with an accommodation request, you must be able to show why that particular request cannot work.  Here, the company appears to have either consciously or subconsciously avoided examining what the employee was actually seeking due to a desire to avoid any movement into that division whatsoever.  (Have a look at my prior post on what undue hardship is for further information).

Additionally, at the risk of sounding like a broken record, I cannot stress enough how critical it is to have a written procedure in place in your workplace relating to the duty to accommodate.  Properly written, it should spell out all of the steps that should be taken by an employer whenever a request for accommodation is made by an employee or a change in the employee's circumstances occurs.   Such a procedure, properly followed in all circumstances, would help an employer avoid missteps the likes of which occurred here.

Lastly, note here that the company's President was found, in his personal capacity, to be liable for what happened here and jointly responsible with the company for paying damages to the employee.  As the President was intimately involved with discussions with Mr. Tofflemire and his union relating to accommodation, and he was the operating mind of the company, it was well within Mr. Tofflemire's right to name the President as a personal respondent to his complaint and within the Tribunal's jurisdiction to make a finding specifically against him.

(Image by linder6580)

Fact versus fear: how employers should respond to H1N1 in the workplace to avoid human rights violations

Many of you will have heard about the story that hit the news last week of a Manitoba man who was barred from patronizing a restaurant in Seven Sisters, Manitoba because his wife had been diagnosed with the H1N1 flu.  The story broke on Richard Cloutier's show on CJOB radio and I was fortunate enough to have been interviewed by him on-air about the human rights implications of the restaurant's decision to deny service.  The man has, apparently, now filed a human rights complaint against the restaurant with the Manitoba Human Rights Commission.  Time will tell how this case ultimately resolves itself.

While this particular situation involved the denial of services by a service provider, the comments I made on the radio show are equally applicable to employers and the workplace.  I thought it might be useful here to let you know what I said and expand upon my comments a bit further:

What is H1N1?

Health Canadaadvises that H1N1 is a strain of the influenza virus that usually affects pigs (and so sometimes this flu is also called the "swine flu").  This virus can, however, make people sick as well.   It is a respiratory illness that causes symptoms similar to the regular human seasonal flu.

How do I deal with H1N1?

1.    Operate based on Fact versus Fear

When dealing with or otherwise deciding how to address H1N1, businesses of all stripes need to operate on the basis of fact versus knee-jerk fear.  This is often easier said than done, especially when dealing with health and safety-related issues, but it is critical.  The minute you take action based on fear versus fact, that triggers a risk of running afoul of the many pieces of legislation business owners need to abide by but, in particular, human rights law. 

In terms of H1N1, it is important for business owners to understand what it is, how it is transmitted and how to protect against an outbreak.  Accessing information on the Public Health Agency of Canada's website on the H1N1 virus or similar information placed on provincial government websites (such as the Province of Manitoba's fact sheets) are key steps.

 

2.    Assume that H1N1 constitutes a disability under human rights legislation

Human rights legislation across Canada prohibits discrimination on the basis of disability or perceived disability.  While historically the flu hasn't been considered a disability by human rights commissions, that related to the regular human flu which is very common and usually of short-term in duration.  H1N1 has been classified as a pandemic virus by the World Health Organization which may well result in human rights commissions considering it in a different light.  Such an approach would be consistent with the Ontario Human Rights Commission's response to the SARS outbreak back in 2003. 

It is important to remember as well that human rights commissions take a broad approach to what constitutes a disability.  A person can, as a result, be considered disabled on the basis of how they are treated even if they do not have an actual disease or illness.  Consider, for example, the man who was barred from the restaurant.  He did not have H1N1, his wife did.  Yet, the restaurant seems to have treated him as though he had the disease.  The H1N1 label had an effect on him anyway.  A human rights commission may well conclude that this person was perceived as having a disability and discriminated against as a result of that perception.

In my view it would be wise for employers to assume that H1N1 would be considered a disability by a human rights body and operate on the basis. 

3.    Uphold your human rights-related responsibilities to all employees impacted by H1N1

The human rights-related responsibilities of employers extend not just to employees who are or may be infected by the virus but also to employees who are not infected.  

Employers must ensure that their workplaces are free of discrimination and harassment.  This means that they need to:

a.    make sure they have a clearly thought out plan to respond to H1N1 in the workplace, one that does not discriminate against employees who have H1N1 or may have been exposed to H1N1.  In particular, you want to be able to justify any actions you take in relation to employees who have H1N1 or may have been exposed to H1N1 on the basis of fact-driven health and safety precautions.  Here, you would want to follow the lead of public health officials and medical professionals;

b.    make sure that you take appropriate steps to accommodate employees who are disabled by H1N1.  What type of accommodation will be reasonable will depend on the circumstances.  It can, however, include things like permitting the employee to take time away from work, allowing the employee to work from home, or providing the employee with alternate work;

c.    make sure to refrain from harassing employees who may have H1N1 or are suspected of having H1N1 and prevent your employees from doing the same.  People have a natural fear of the unknown and since H1N1 is still a very new disease you may find your non-infected employees acting out of fear when they find out or suspect a work colleague has come down with H1N1 or has been exposed to someone with the illness.  This can result in harsh treatment of their colleagues.  Take any complaints of this type of harassment seriously and take appropriate steps to put a stop to any inappropriate behavior. 

Conclusion

While the barring of the man from the restaurant is the first incident of this kind that I have heard about relating to H1N1, I'm hopeful that it will be the last.  I'm also hopeful that the above information helps you avoid coming into conflict with the human rights legislation in your jurisdiction in relation to how you operate your business if H1N1 knocks on your door.

Photo credit:

Twitter Talk - August 24, 2009

I'm thankful I was able to get out with my family yesterday and enjoy our one whole day of summer yesterday!  (We almost didn't recognize the blue sky and sun when it showed up in the morning).  Today, we got hit by a thunderstorm which had me wondering if we were going to leave the house at all!  Guess I should be thankful we have a roof over our heads in order to continually duck this lousy weather.

Anyway, amidst the weather wranglings, there has been a lot of interesting discussion on Twitter during the past week covering everything from enhancing workplace diversity, to how workplace sexual harassment is morphing with the new technologies and even to how those new technologies are impacting employer behaviors.  You'll also see a link to a great video that shows how a person who is blind navigates the internet on his computer.  Happy reading/viewing!

Alberta companies enhancing diversity of their workforces esp in male dominated fields http://chilp.it/?1dec50

Thoughts? Are women penalized in the wkpl if also a mom? http://chilp.it/?06be8e

The 'new' sexual harassment is less in-your-face than in the past but still a big problem. http://chilp.it/?a0fb02

RT @jonhyman: New blog post: Papering a personnel file as evidence of retaliation? http://bit.ly/Ijhgs

Just the beginning...RT @RossRunkel: 7 percent of hiring managers look at applicants' Twitter posts http://tinyurl.com/kkk9jr (@djillpugh)

RT @GlendaWH: Have you ever wondered how a blind person uses a computer? Here's a great video http://bit.ly/uuFC4

 

Interview: Impact of Ontario accessibility standards on delivery of training in the workplace

I recently had the opportunity to be interviewed for the July 2009 issue of the OHSCompliance and EHSjustice newsletter (a Canadian publication addressing Environmental, Health and Safety News and Legislation which you can find at www.ecolog.com).  The focus of the article was on how the standards currently being developed pursuant to the Accessibility for Ontarians with Disabilities Act, 2005 might impact how employers and safety training agencies in Ontario deliver training and/or provide safety information in the workplace.  (You can find out more information about the legislation by viewing the Accessibility for Ontarians with Disabilities website).  As I thought readers of this blog may well have an interest in what was discussed in the article, I was kindly provided with permission from EcoLog Information Resources Group, a division of Business Information Group and publisher of EHScompliance.ca newsletter to reproduce the piece below.  Please note that the article cannot be reproduced, reprinted, republised or reposted anywhere else without the written permission of the original publisher.

OHScompliance and EHSjustice -July 2009

Accessibility standard may affect how training, safety info delivered in Ont

by Mark Sabourin

Across the country, advocates for persons with disabilities are watching with interest as Ontario develops standards under the Accessibility for Ontarians with Disabilities Act,2005 (AODA). A standard for customer service came into force on January 1, 2008, and four others are under development: transportation; built environment; information and communications; and employment.

Public sector organizations must comply with the customer service standard by January 1, 2010, while private sector and non-profit organizations must comply with the standard by January 1, 2012.

The four remaining standards are expected to be finalized in the coming months.

Ontario’s employers and safety training agencies haven’t been paying much attention to the process so far, and very likely they should have. The information and communications standard, for one, will require that information about “workplace health and safety procedures and systems” be made available to employees with disabilities in “accessible alternate [sic] formats and communication supports.” The employment standard specifically references WHMIS (workplace hazardous materials information system) material, among others, which must be made compliant with the information and communications standard.

Even staunch advocates of the standards are quick to explain that this does not mean that all MSDSs (material safety data sheets) will have to be rendered in Braille. But the information and communications standard, if adopted (and it has passed all phases of public review), may significantly affect how training is delivered and how safety information is communicated.

In addition to disabilities that are perhaps more familiar to employers, such as mobility, hearing or visual impairments, the AODA includes learning disability. That covers between 4% and 6% of Ontario’s population, says Diane Wagner, coordinator, Public Policy and Client Services with the Learning Disabilities Association of Ontario (LDAO). Wagner served on the information and communications standard committee, and the LDAO was also represented on the employment standard committee.

Really, it shouldn’t come as a surprise. The current Ontario Human Rights Code prohibits discrimination in employment “because of handicap,” which includes learning disability.  The Ontario Human Rights Commission has a long list of policies, supported by case law, around the doctrine of reasonable accommodation. There is no easy definition, but if a worker’s disability can be accommodated without undue hardship or compromise to safety, then it must be.

Donna Seale, Manitoba human rights lawyer and educator, says it has long been the case that workplace materials should be made available in formats suitable for the disabled, including the learning-disabled. Most employers get the concept of reasonable accommodation, says Seale. Translating that into action is sometimes problematic, and that’s where standards like this one step in. They tell employers and training agencies what they should do.

Acceptable alternative communication formats for persons with disabilities are listed in an appendix to the information and communications standard. Formats include Braille, e-text, audio, video, captioned video, sign language and many others. These are the provisions that have provoked fear or ridicule from critics, but supporters say these concerns are unfounded.

“A big misconception is that everything has to be ready all at once, up front,” says Diane Wagner, “that you have to convert everything into Braille, everything into every format.”  That’s not the case. Employers will have to determine first if they need to convert information, what information needs to be converted, and what format is most appropriate.

Two workers of the same age and background, with identical disabilities, will not have the same accommodation needs, says Bob Santos, CEO of Link Up Employment Services for Persons with Disabilities, headquartered in Toronto. Quite likely, the degree of accommodation required will be far less than the employer initially suspected. 

Safety is a legitimate exception to reasonable accommodation. The communications standard won’t require employers to offer forklift training to blind workers. But employers will not be permitted to deny an opportunity to an employee solely on the argument that a learning disability prevents effective communication of safety information, says Diane Wagner. If an employer plans to make that argument, the employer had better be prepared to prove that considerable efforts were made to accommodate the worker, and that those efforts failed.

“You can’t say, ‘he can’t read the health and safety manual so he can’t get the job,’” says Wagner.

What the standard should do is compel employers and training delivery agencies to review how they deliver safety training in order to make it more broadly accessible, says Bob Santos. His organization delivers a program called SafeAbility, which offers safety training geared to the needs of persons with disabilities. It also offers a “train the trainer” program for employers and agencies that will be delivering services to workers with disabilities.

It is not a burdensome process, Santos assures. It requires a shift in thinking by the persons delivering the training or communicating the information, and more careful scrutiny of the media that carry the information. “It is simple enough and straightforward enough to be implemented in any place of employment, any community, anywhere in the world.” It is more expensive, he says, but not much more, and certainly not enough to bar its introduction where needed.

Cost alone is seldom a sufficient argument against reasonable accommodation, says Donna Seale. To prevail, the cost would have to threaten the viability of the business, she says.

It’s quite possible that there are more learning-disabled people in the workforce than employers suspect. Margaret Eaton, president of the literacy organization ABC Canada, says learning disability often manifests as poor literacy, and those workers have naturally gravitated toward the manufacturing and resource sectors, where literacy skills are not in as high demand. The shame felt by poorly-literate workers often leads them to conceal their status, she says.

But the decline in the manufacturing sector, coupled with greater recognition of learning disability in the education systems, means that more and more learning-disabled workers will be seeking employment in positions they can safely perform, provided training and safety information is delivered to them in a format other than a hard-copy manual.

“[Learning-disabled] students that are coming up through the school system are used to using assistive technologies,” says Diane Wagner, referring to some of the accommodations referenced in the information and communications standard. Margaret Eaton says the previous generation of workers would have been reluctant to declare a learning disability and ask for accommodation. For the generation entering the workforce, it will be the norm.

Often, says Donna Seale, employers look at accommodation as “something they have to endure,” when in fact the changes end up benefiting everyone in the workplace, not just those to whom they were initially directed. Ours is an aging workforce, she says.  Accommodations made for visually impaired workers or learning-disabled workers may also prove to be great benefits to older workers or others, she says.

Bob Santos likes to cite the example of the automated door-opening device found in contemporary buildings. It’s activated by a push-button identified by a universal logo of a person in a wheelchair, but it is far more often used by able-bodied people, he says. The same should happen with training, as sensitivity to the needs of persons with a wide range of disabilities may improve the standard of training delivery for everyone.

Having a process AND following it key to meeting duty to accommodate

In the course I teach for the Manitoba Human Rights Commission on "The Duty to Accommodate in the Workplace", I spend a good chunk of time talking about how important it is for employers to implement a policy/process in their workplaces establishing how they will respond to requests for accommodation by employees.  In particular, I talk about how critical it is for employers to be able to demonstrate, at the end of the day, that they have thoroughly examined and considered all of the possible ways that they can provide accommodation for an employee before they even think about jumping on the 'sorry we can't do this' band wagon.  In addition, I stress how critical it is for employers to understand that their duty to accommodate is separate and distinct from any determinations made about the employee by a third party such as an insurance provider.

The fact is, if you do not have a process in place to reasonably assess accommodation requests, you will not successfully defend against a human rights complaint alleging a failure of the duty to accommodate.  Same goes if you have a process in place and then choose, for whatever reason, not to follow it.  Ditto if you choose to simply follow on the coat tails of a third party payer to decide how you should go about accommodating your employee.  Unfortunately, there are still a lot of employers out there who are not getting these messages.  Case in point, Jodoin v. City of Calgary, a November 2008 decision of the Human Rights Panel of Alberta. 

The facts in brief

Mr. Jodoin began working for the City of Calgary in 1999.  In September 2002, while he was working in the waste and recycling department as a driver/labourer, he injured his lower back.  He subsequently made a successful claim for workers' compensation benefits.  From September 2002 to February 2003, Mr. Jodoin underwent a number of medical tests and was determined by his physician to be unfit for work during this time.  In early February 2003, he underwent spinal decompression surgery.  It wasn't until June 2003 that Mr. Jodoin's doctor recommended a gradual return-to-work.  His return was not successful, though, as the job he was placed in was too strenuous.  He went off work again to undergo further testing and obtain an accurate assessment of the impact of his disability. 

In March 2004, it was determined that Mr. Jodoin's condition was such that he would only be able to do sedentary work in the future.  One of Mr. Jodoin's specialists sent the City a list of Mr. Jodoin's work restrictions and asked for the City to determine whether it could accommodate him in a permanently modified or other suitable alternate position.

The City began using the work restrictions identified by Mr. Jodoin's doctor in order to attempt to find long term accommodation for him.  In the meantime, the Worker's Compensation Board, which was also involved, determined that it was not satisfied that Mr. Jodoin could only do sedentary work and, instead, came to the conclusion that he ought to be able to perform work that simply did not require heavy lifting.  As a result of the WCB re-assessment of Mr. Jodoin's work abilities, the City changed his restrictions from sedentary to medium-type work.  The City sent out some e-mails to supervisors in Mr. Jodoin's department and to human resources and return-to-work coordinators requesting accommodation for him.  No potential jobs were uncovered.

WCB subsequently determined that Mr. Jodoin was not participating sufficiently in their job search program and, as a result, terminated his re-employment assistance benefits.  The City then sent him a letter indicating that his benefits had been terminated by WCB for failing to cooperate in the rehabilitative process.   The City further advised Mr. Jodoin that they were prepared to grant him an unpaid leave of absence for 30 days to rectify the situation with WCB.  Mr. Jodoin was instructed to complete a leave of absence form and return it within 7 days.  The City's letter went on to say that if Mr. Jodoin failed to return the form or be reinstated by WCB his employment would be terminated.

Although Mr. Jodoin asserted that he cooperated to the best of his abilities with WCB and he wrote a letter to the City setting this out, he received no response.  Mr. Jodoin did not sign the leave of absence form, believing that he was being "pushed out the door because he was sick."  The City subsequently wrote to Mr. Jodoin in July of 2004 advising him that they considered him to have "voluntarily resigned."

Decision

The Alberta Human Rights Panel determined that Mr. Jodoin did have a physical disability as defined by the Alberta human rights legislation and that the City was well aware of his disability. 

The City accepted that it had a duty to accommodate Mr. Jodoin but argued that it had provided that accommodation by making available to him four "safety nets" (Workers' Compensation Benefits, Long Term Disability, Supplementation of Compensation under the collective agreement, and the possibility of a Leave of Absence).  The Panel rejected this argument, pointing out that the availability of these types of benefits to employees did not necessarily bear on whether the employer had met its duty to accommodate. 

Contrary to the employer's contention, the Panel concluded that the City failed to make reasonable efforts to accommodate their employee for the following reasons:

1. Without consulting with Mr. Jodoin's doctors, the City accepted the WCB's assessment of Mr. Jodoin's work abilities.  The WCB assessment that Mr. Jodoin could perform work at a 'medium level' was diametrically opposed to the medical assessment that he could only perform sedentary work.  The Panel found that by accepting the WCB assessment and modifying Mr. Jodoin's work restrictions to reflect this acceptance, the City would have set him up for failure in any position that they might have found for him;
2. The City's search for permanent modified work for Mr. Jodoin was "limited and ineffective" because:

• the City sent e-mails on two occasions requesting possible accommodations to Mr. Jodoin's     current     department (Waste & Recycling), even though the City's representative indicated she seriously doubted his ability to return to work in that department;  
• with one exception, no record was kept of the positions that the City had actually considered and ultimately rejected as possible accommodations for Mr. Jodoin;
• the City's policy and procedural guidelines indicated that union involvement was required anytime an accommodation might engage the collective agreement.  Although the collective agreement was arguably engaged here, the union had never been approached by the employer.  While the City argued that Mr. Jodoin indicated he had no use for the union, the Panel pointed out that this had little relevance to the employer's responsibility to involve the union pursuant to its own process;
• the City's procedural guidelines mandated an open communication process.  However, the City was unable to show that it maintained regular contact or any semblance of open communication with Mr. Jodoin;
• the City's guidelines provided two checklists to assist in the accommodation process but the City's representative stated she followed the process "in her head" rather than either of the checklists as it would be too time consuming to complete the checklists on all of her files;
• all possible accommodations had not been pursued.  The City could not show that their search for modified work for Mr. Jodoin had been extended to City departments outside of Mr. Jodoin's union or corporate wide.

3.    Even though Mr. Jodoin was medically capable of working in a sedentary position, he was never given the option by the City of returning to work when WCB suspended his benefits.  Instead, he was offered a Leave of Absence to enable him to appeal that decision.  The Panel also pointed out that this "option" was given to Mr. Jodoin with no explanation and without advising him that they were not searching for a sedentary position for him;

4.    At no time did the City actually inform Mr. Jodoin that they could not find appropriate accommodation for his disability.  Instead, they threatened to terminate him if his WCB benefits were not reinstated of if he did not sign the Leave of Absence form.  The Panel stressed that because this was such a complicated employment situation, the City had a responsibility to meet with Mr. Jodoin and explain his options and any consequences associated with not signing the form, something it failed to do;

Finally, the Panel concluded that the CIty provided no evidence that it would have suffered undue hardship by continuing to employ Mr. Jodoin in a sedentary position.

Remedy

Finding that the City of Calgary failed to meet its duty to accommodate Mr. Jodoin, the Panel ordered that the City pay to him $5,000.00 in general damages and lost wages in the amount of $17,307.69 (less statutory deductions) plus interest.

What to take from this case:

• I'll end this post the same way I started it -- having a process and following it is absolutely essential if you, as an employer, hope to avoid liability in relation to the duty to accommodate; 
• Follow that process in each and every instance you are faced with needing to accommodate the human rights-protected needs of your employees; and
• Complete your process.  Do not stop looking for accommodation if WCB or another insurer or third party payer decides to terminate any benefits your employee might have been receiving relating to the accommodation need.  An employer's duty to accommodate operates independently and you'll be the one on the hook, not the insurer, if you choose to short-circuit that policy without appropriate justification.

  

 

New job site focuses on connecting workers with disabilities and diversity-seeking employers

The Canadian Abilities Foundation has announced the launching of a new online job board at jobs.abilities.ca.  The job board is the result of a strategic partnership with Workopolis.com , and, according to the CAF's news release, is unique in Canada due to its specific focus on connecting prospective employees who have disabilities with employers who have an interest in enhancing the diversity of their workforces.  If you're a person with a disability looking for a job or an employer who values the contributions that persons with varying abilities can make to your business, jobs.abilities.ca looks like a site worthy of checking out.

Employer terminates disabled employee before union protection could be gained

In a March 9, 2009 decision, the British Columbia Human Rights Tribunal ruled that Norwex Civil Contractors Inc.  discriminated against Chris Mills on the basis of disability.  In particular, the Tribunal concluded that Mr. Mills, who was actually terminated twice by Norwex, was ultimately fired the second time to prevent him from becoming a member of the company's newly formed union.  Membership in the union would have protected Mr. Mills from arbitrary termination on the basis of disability.

Although the Tribunal would have awarded monetary damages to Mr. Mills, he did not seek compensation.  Instead, he brought his complaint to bring public awareness to the discrimination that people with disabilities can, and often do, encounter in the workplace.  In this particular situation, Mr. Mills presented with a visible physical disability (his gait was affected and he spoke slowly and precisely) due to a brain injury he sustained as a result of literally almost drinking himself to death.  When he was initially terminated by Norwex, he was advised that he had to be let go because other employees were uncomfortable around him.  Norwex reversed its decision to terminate after Mr. Mills asserted his rights to employment without discrimination.  "Wiser" the second time around, Norwex chose to tell Mr. Mills he was now being let go because his job would no longer exist due to the closure of part of the company.  Unfortunately for Norwex, Mr. Mills saw right through that explanation and took them to task before the Tribunal.  No one appeared at the hearing on behalf of the company.

The decision is a short one (6 pages) and I'd urge you to read it.  It shows just what disabled employees can come up against in the workplace.  It turns out for Mr. Mills, his most significant barrier to overcome wasn't his debilitating injury, but his employer.