Human Rights in the Workplace

Supreme Court denies leave on pre-employment drug test case

The wait for the Supreme Court of Canada to wade in on the pre-employment drug testing debate is officially over -- it has denied leave to appeal of the Alberta Court of Appeal's decision in Alberta (Human Rights & Citizenship Commission) v. Kellogg, Brown & Root (also known as the "Chiasson decision").  I commented on both the Court of Appeal and Queen's Bench decisions here.   

I think it's fair to say that lawyers, human rights commissions and employers, alike, were anticipating clarification from the Supreme Court on the issue of pre-employment drug testing and the balance between an employer's obligation to maintain a safe workplace while respecting individual human rights.  That won't happen, however, this time around.  My guess is that the Chiasson decision was so unusual factually -- an employee claiming discrimination on the basis of disability (drug dependence) when he admittedly was not a drug addict -- that the Supreme Court concluded this wasn't the case that would enable a true clearing up of the issues.  

While the leave decision is being touted by some as so significant that Courts of Appeal across Canada will now follow the Alberta Court of Appeal's lead, I don't share that view.  Maybe I'm in the minority here but I think the Chiasson case is so fact-specific that courts and arbitrators will still grapple with drug testing, pre-employment or otherwise.  Hopefully the Supreme Court will have the opportunity to tackle this very confusing area of the law soon.

Practical tips on addressing dyslexia in the workplace

HRZone has an interesting article posted on its website today entitled "Dyslexia at work: Realising your employee's potential".  The article offers practical tips on some of the ways an employer can create a work environment that is accommodating to employees with dyslexia, a condition that is often misunderstood.  While the article approaches its topic from the perspective of disability discrimination legislation in the United Kingdom, the general concepts contained in the article seem universally applicable.  As always, though, you'll want to get specific advice relating to any particular accommodation issue you might be handling in your own workplace.  The article includes information on:

• what dyslexia is and how to recognize whether an employee may have dyslexia;
• how to approach an employee you suspect has dyslexia;
• how to handle situations where the employee confirms they have dyslexia;
• what adjustments (or accommodations) can be made to the workplace to help support dyslexic employees.

I'd be interested to hear from you -- whether you're an employer, union rep or employee --  regarding steps that were taken in your workplace to ensure the full participation of employees who have dyslexia.

Reaction to rat research constitutes a disability

Does an employee's severe negative reaction to doing live surgery on rats constitute a disability?  Yes, according to the particular facts in University of Western Ontario v. University of Western Ontario Faculty Association.

Yousif Barbin, a laboratory assistant working at the University of Western Ontario, had spent seven years working on various research projects but had never had to do any dissection of or live surgery on animals.  Then, he was given the opportunity to work on a project designed to further cancer research, one that he jumped at.  However, the project required him to experiment on the nervous systems of live rats.  Although he had no moral objection to the work and was quite enthusiastic about it, over time he developed frequent and intense symptoms associated with what he was doing - he began associating his sleeping daughter with the rats under restraint during the experiments, he experienced nausea and profuse sweating, developed insomnia, and found himself plagued with the associated images of his daughter and the anesthetized rats. Within a month of starting the job, Barbin went on sick leave for the next 15 weeks.  Barbin's employer subsequently took the position that he was not, in fact, away from the workplace due to illness but, instead, due to his dislike of some of the duties of his position.

Barbin and his union filed grievances alleging that the University failed to accommodate Barbin's “medical limitations”.   The parties proceeded before the Ontario Labour Arbitration Board for a preliminary determination of whether Barbin was off work due to a disability entitling him to accommodation under the Ontario Human Rights Code.  The University's primary position was that even if the employee's moral aversion to what he was doing in the workplace caused him physical stress and symptomatology (which the employer did not dispute here), that did not amount to a disability.  In essence, the University argued that Barbin did not suffer from a recognized medical condition, he just had a bad reaction to live surgery on the rats.

Subsequent to a review of a number cases which address what constitutes a disability, including the Supreme Court of Canada's decision in City of Montreal, the adjudicator noted that:

• the cause of an employee's stress does not disentitle him to accommodation; and
• medically recognized stress that results in an inability to continue to work has been accepted as a form of disability.

But what really lead the adjudicator to conclude here that Barbin's reaction to the rat research amounted to a disability was the University's absence of any concerted attack on the medical evidence presented by the employee at the hearing:

"....where this Employer has the power to solicit independent medical information that is relevant to the Grievor’s inability to attend work and it declines that opportunity, it is difficult for an arbitrator to discount the only evidence that is available. Here, the Union provided unchallenged medical evidence that he became physically and psychologically incapacitated from continuing certain duties. Therefore, the only conclusion that can be drawn is that the medical evidence supports and establishes the claim that he was physically and psychologically impaired to the point that he could not continue to perform his assigned duties.  While his personal beliefs may have subconsciously been a contributing factor in his condition, he was temporarily prevented from working by his resulting medical condition, not his personal beliefs.  Accordingly, it must be concluded that he was temporarily disabled by the manifestations of anxiety and stress which fit within the definition of 'disability' under the Human Rights Code. I so declare."

What to take from this case:

Employers - if you are going to argue that an employee's condition, regardless of its cause, is not a disability, you need to be prepared to present evidence to show why.  This is particularly so where, as here, the employer has the ability under the collective agreement to require the employee to attend for an independent medical examination.  Don't access this right and be prepared for the adjudicator to draw an adverse inference against you.

Employees with mental illness face a double battle

There's a terrific article in the Financial Post this morning entitled "Battle of the Brain" which discusses the double battle that employees with mental illness often face: battling against their illness while facing severe societal (and workplace) stigma in relation to that illness. 

The article notes that "it can often take [an employee] as long as five years after an episode of mental illness to get the right diagnosis, find the right medication and get back on track."  The article goes on to discuss the various stigmas faced by employees in the workplace, citing real-life examples, and the new Mental Health Commission of Canada that is tackling the issue.  Important mention is also made of the fact that the accommodation of employees with mental illness is not necessarily as onerous as some employers initially think it will be. 

Searching for an accommodated position: what's the process?

Last month, I was fortunate to have been asked to speak at the Current Issues in Disability Management Conference put on by the Rehabilitation Return to Work Partnership in Winnipeg.  It was a terrific opportunity to present to a group of people who are very knowledgeable in the area of accommodating disability in the workplace.

Following my presentation, I happened to get asked virtually the same question by two of the conference's attendees and so I decided that it would be worth a blog post to cover what I was asked.  Essentially it was this: 

when exploring how to accommodate a disabled employee, what process is an employer required to follow?

More particularly, discussion occurred around whether an employer just has to look at existing positions in its workplace in order to determine what might be available for an employee requiring accommodation due to disability or whether the employer has to go beyond that.

The general answer to this question flows from an Ontario Labour Arbitration case known as Ottawa-Carleton District School Board v. O.S.S.T.F..  The decision endorses a passage from an article by Professor Michael Lynk entitled Disability and the Duty to Accommodate: An Arbitrator's Perspective.  In that article, Prof. Lynk states that the duty to accommodate disability requires an employer to go beyond simply looking at whether an employee can be accommodated in a position already in existence in the workplace.  In particular, Prof. Lynk states (as noted in the Ottawa-Carleton decision):

"....the law obliges an employer to determine whether existing positions can be adjusted, adapted or modified, and whether there are other positions in the workplace that might be appropriate. This responsibility entails an assessment of all reasonable alternatives. To prove that its accommodation efforts were serious and conscientious, an employer is required to engage in a four-step process, which involves (1) determining if the employee can perform his or her existing job as it is; (2) if not, determining if he or she can perform his or her existing job in a modified or “re-bundled” form; (3) if not, determin­ing if he or she can perform another job in its existing form; and (4) if not, determining if her or she can perform another job in a modified or re-bundled form."

In keeping with this decision, I advise employers to do the following when assessing their ability to accommodate a disabled employee:

1. Ensure they have up-to-date job descriptions which accurately detail the duties of all positions in the workplace.  Operating on outdated job descriptions can impact an employer's ability to find accommodation and, ultimately, impair the ability to argue it has satisfied its duty to accommodate;
2. Review the employee's current job and ask:
   • What are the essential duties and non-essential duties of the current job?
   • Of the non-essential duties identified, can any of these duties be removed or reassigned?
   • Of the essential duties identified, what can the employee do/not do?
   •   What can be done to assist the employee perform the current job?:
     • can modifications be made to the way the job is done in its existing form?
     • can the employee be provided with particular equipment or support to enable her to perform the job?
     • can modifications be made to the work schedule or workload?
     • can the job be rebundled (reassembled to create a productive job)?
3. If it is determined that the employee cannot perform the essential or core duties of their current job even with accommodation, identify all other job possibilities in the workplace and ask:
   • What are the essential duties and non-essential duties of the jobs?
   • Of the non-essential duties identified, can any of these duties be removed or reassigned?
   • Of the essential duties identified, what can the employee do and/or what are they unable to do due to the restrictions of their disability?
   • Can the employee perform any of these jobs in their existing form?
   • If not, what can be done to enable the employee to perform any of the possible jobs in a modified or rebundled form? (see also questions under 2 above)

It is critical that, in doing this review of jobs, an employer adequately documents all steps taken in assessing whether it can or cannot accommodate a disabled employee, including the ultimate conclusion reached and the basis for it.  By following the process noted above and creating a proper paper trail, an employer will place itself in the best position possible to demonstrate it has legally fulfiled its duty to accommodate.

Tribunal topples company's attendance management program

A recent decision of the British Columbia Human Rights Tribunal (C.A.W., Local 111 v. Coast Mountain Bus Co. (No. 9)) has concluded that an Attendance Management Program ("AMP") operated by the Coast Mountain Bus Company (formerly BC Transit) was structured and applied in such a way that it discriminated against employees of the company who had chronic or recurring disabilities.

The Facts - In Brief

The AMP was adopted by the company in order to address concerns about high levels of absenteeism among its employees, particularly its transit operators.  The program involved monitoring the absenteeism of all employees and identifying those with higher than average levels of absenteeism.  The employees identified would be initiated into the program and moved through three levels.  At Level 3, attendance parameters would be imposed on the employee setting out a specified number of days and number of incidents of absenteeism per year over a period of time.  If the employee failed to meet those parameters, the company would then proceed to consider whether the employee should be terminated.

The Problems with the Program

The 150 page decision detailed a number of ways in which the AMP failed to appropriately acknowledge the disabilities of employees:

1. there was a lack of communication and coordination between the two departments set up by the company to administer the AMP including an overly rigid adherence to rules in the collective agreement relating to the confidentiality of employee medical information.  This resulted in decision-makers not having full medical information necessary to determine whether an employee's absenteeism was disability-related or to determine whether accommodation was appropriate before an employee was placed into the AMP or at the early stages of the AMP;
2. the company chose to process employees with attendance concerns through the AMP first and determine whether or if it could accommodate the employee after-the-fact.  When an employee reached Level 3, the average absenteeism rate of all other transit operators was used to establish the attendance parameters the employee had to meet.  There was no assessment conducted regarding what the parameters ought to be in light of an individual transit operator's disability;
3. when the company did consider whether an employee's disability-related absenteeism could be accommodated, it took too narrow a view of what its duty to accommodate entailed, focusing only on whether the employee could be moved into another job and, particularly, a job that had the potential to improve the employee's attendance.  At no time did the company consider whether a transit operator could be accommodated in his or her own position by permitting a relaxation of the attendance rules;
4. the company counted partial days that an employee was not able to work while on a rehabilitation assignment or a gradual return-to-work as an absence that factored into the assessment of whether the employee was brought into or advanced within the AMP.  This was found to be a discriminatory penalization of employees who were seeking accommodation.

Rejection of the Company's Defence of the Program

The Tribunal rejected the company's argument that the structure of the AMP and the manner in which it implemented the program was a bona fide occupational requirement.  Specifically, the Tribunal concluded that the company failed to establish that it was not possible to accommodate employees with chronic or recurring disabilities outside of or within the AMP short of undue hardship.  As the AMP was set up in such a way that accommodation of an employee was not considered, if at all, until after the employee had exceeded the average attendance standard imposed upon him or her, there being no accommodation within the standard itself, the Tribunal concluded that this was contrary to legal principles established by the Supreme Court of Canada.  Moreover, although the company led evidence of the substantial cost of employee absenteeism to its overall operations, it failed to lead evidence specifically showing that accommodating employees with chronic or recurring disabilities either before they were entered into the AMP or at an early stage of the program would create an undue hardship financially or otherwise.

In the final outcome, among other remedies, the Tribunal ordered the company to cease applying the AMP to transit operators whose attendance was affected by chronic or recurring disabilities.

What Does This Mean?

In my view, this decision represents the most comprehensive explanation to date as to how the duty to accommodate factors into each aspect of a system created to manage employee attendance.  Although the Tribunal recognized employers have a significant interest in implementing ways to manage costs, both financial and otherwise, associated with excessive absenteeism of their employees, it stressed that employers cannot pursue this interest at the expense of the rights of disabled persons under human rights legislation.  This decision spells out that it will be considered discrimination to process employees with disabilities that impact their attendance into an attendance management program without first determining whether they require accommodation and, if they do, what the accommodation options are.

Employers who currently have in place an attendance management program would be wise to review that program and ensure that:

• employees are not automatically placed into the program simply because they have exceeded some particular standard of attendance.  The underlying cause of the absenteeism must be examined first;
• in examining the underlying cause of an employee's absenteeism and before an employee is brought into the program appropriate medical information is available so that decision-makers may properly determine if an employee's absences might be disability-related and assess accommodation options if they are;
• in assessing accommodation options for employees with disability-related absences, the assessment extends to looking at attendance expectations in addition to whether their job requires modification.  If, as a result of disability, an employee will not be able to maintain regular attendance, employers must consider whether they can accommodate the rate of absenteeism that may be associated with the particular employee's disability.  In other words, can the employer modify what it considers acceptable attendance by, in effect, creating an attendance standard specific to the particular employee without incurring undue hardship?
• employees are not placed into the the program if the employer can accept (and therefore accommodate) the employee-specific attendance standard;
• partial days that an employee is not able to work while they are on a rehabilitation or gradual return-to-work assignment are not treated as an absence;
• anyone in the company who is involved in decision-making relating to attendance management receives appropriate training to understand what the duty to accommodate requires of them.

While attendance management programs, in principle, survived the BC Tribunal's scrutiny, serious questions have now been raised about whether employers will realistically be able to apply such programs to employees with recurrent or chronic disabilities. 

See also:"Rights tribunal puts the brakes to bus-driver attendance check" - The Province

Internet addiction: the discussion continues

In case you were holding your breath waiting for the next instalment of the discussion I've been having with Jon Hyman over at Ohio Employer's Law Blog, you can stop now as he has provided a further response.  While, in the end, I think he and I will generally have to agree to disagree on one main point (which I will talk about in a second), overall the "great divide" that seemed to exist between us when we first started chatting about Internet addiction as a potential disability triggering human rights protection has shrunk dramatically.  This shows the importance of discussion on accommodation of disability in the workplace and being open to the other side's views, a lesson for employers and employees alike.

So, going back to Jon's response, I generally agree with his first two points.  In relation to his first comment, there is nothing from a human rights law perspective preventing an employer from terminating an employee who has not disclosed a disability.  I would, however, add that an employee does not actually have to tell the employer with specific words that he has a disability to trigger an employer's duty to accommodate.  Particularly when we're dealing with mental illness which may prevent an employee from being aware of his or her disability, if an employer ought to have been aware by the employee's behaviour that they might be contending with a disability, then that will be enough to attribute knowledge of a disability and should give an employer pause before a decision is made to terminate.  In relation to his second comment, I completely agree that if an employee does disclose a disability and requests accommodation she is only entitled to what is reasonable in all of the circumstances.  In relation to his last point, Jon and I diverge, once again:

"In all likelihood, this interactive [accommodation] process will result in a dead-end for an employee who claims an Internet addiction.  While there is software and other techie solutions to block access to certain websites, those solutions are expensive, hard to implement, and will probably cause an undue hardship on the employer."

The thing is, I can only answer the question as to whether accommodating an employee who claims being addicted to the Internet would constitute an undue hardship in relation to an actual factual context.  I don't know enough about what might be required to accommodate an individual employee who asserts Internet addiction (if they can be accommodated at all) or whether the solutions are expensive or not, or hard to implement or not.  And that's the whole point I've been trying to make throughout these discussions.  You cannot discount accommodating an employee's disability (or a claimed disability) on the basis of subjective belief or speculation.  As an employer, you have to be prepared to engage in a process of determining whether accommodation of the employee is possible, and back up any decision to decline accommodation with actual evidence (see my post on what amounts to undue hardship in Canadian law for further clarification of this point).  Your mantra should always be "process plus proof, process plus proof".  If you can say that 10 times in a row and still be left holding the proof in your hands, your decision to terminate, if that is what you conclude, should make the passing grade before the human rights commission (and beyond).

My thanks to Jon Hyman for engaging in this dialogue.

Internet addiction - part two

Further to my post the other day on Internet addiction where I cautioned Canadian employers against proceeding with automatic termination of an employee who raises such an addiction, comes this response from Jon Hyman at Ohio Employer's Law Blog.  In essence, he states that in the US:

• if an employee raised Internet addiction in response to being told he was being terminated, the Americans with Disabilities Act (ADA) would not require an employer to refrain from termination and consider accommodation; and
• if an employee requested accommodation for Internet addiction before a decision to terminate was made the employer may have to consider accommodation but the employee would still have to perform the essential duties of his job.  If that employee's job required them to access the Internet and e-mail, it would seem difficult to imagine an accommodation that could be suitably crafted to address this kind of addiction.

I certainly don't take issue with Mr. Hyman's views on what the ADA may or may not require of employers in an Internet addiction scenario as he is doubtless more familiar with American human rights legislation than I am.  Our differing opinions are likely attributable to the different jurisdictions we practice law within.  That, of itself, is an important lesson for employers -- to always be aware of what human rights legislation applies in the jurisdiction you operate your business from and what it requires of you.

For my part, I maintain what I said in my previous post about what the law in Canada would likely require of employers who discover an Internet addicted employee in their midst.  If, upon termination for excessive non-work related computer use, an employee advises an employer they have an addiction to the Internet, a wise employer would, in my view, take a cautious approach to proceeding with that termination in light of this information.  Does this mean that an employer would be prevented from terminating?  Not necessarily.  But, going through the exercise of determining whether the employee has an actual disability and, if so, considering what might that require of the employer from the point of view of accommodation prior to making the final decision to terminate is an approach that has been mandated by Canadian courts, arbitrators and human rights commissions.  Ignoring reference to a potential disability at termination (or otherwise), is done at an employer's own risk of attracting human rights liability.  Does it matter that Internet addiction may be a "new" disability?  No, I don't think so, particularly since it is being likened to alcohol and drug addiction both of which are considered disabilities requiring accommodation in Canada.  I also think employers need to take care not to discount a claimed addiction or other disability because they do not think the addiction or disability are valid (look at what happened to Honda Canada when it questioned the validity of chronic fatigue syndrome).

As for Mr. Hyman's comments that even if an employer paused to consider accommodating an Internet addicted employee the employee would still have to perform the essential duties of the job, I completely agree.  Where we part company is on the approach to the actual question of accommodation.  While it may not be easy to think up possible ways an employer could accommodate an Internet addicted employee who needed to use the Internet and e-mail to do her job, the law in this country still requires an employer to engage in that process.  Failure to actually engage a process to consider what could be done to accommodate is, in and of itself, sufficient to trigger liability under Canadian human rights law even if no accommodation could ultimately be provided.  (Besides, aren't there blocking devices employers can use to block employee access to non-work related Internet sites? -- speaking from a real non-techie perspective -- but I digress).  In any event, accommodation is an individualized process and would have to be considered from the perspective of what would need to be done to accommodate the specific employee in question in their specific job in question, which may require a lot of an employer or, perhaps, not. 

So, the real message here?  Tread lightly whenever an employee raises a potential disability issue connected to their inability to do their job because whatever actions you take after being advised of the potential disability (whether it is Internet addiction or something else) may be considered discriminatory. Forewarned is forearmed.

Internet addicts: the next wave in accommodation claims?

In an article for the American Journal of Psychiatry titled "Issues for DSM V: Internet Addiction", Dr. Jerald Block posits that internet addiction should be included in the update to the Diagnostic and Statistical Manual of Mental Disorders (DSM).  He describes internet addiction as a "compulsive-impulsive spectrum disorder that involves online and/or offline computer usage" and which involves four specific components:

1. excessive use, often associated with a loss of sense of time or a neglect of basic drives;
2. withdrawal, including feelings of anger, tension, and/or depression when the computer is inaccessible;
3. tolerance, including the need for better computer equipment, more software, or more hours of use; and
4. negative repercussions, including arguments, lying, poor achievement, social isolation, and fatigue.

The validity of internet addiction as true disorder is and has been questioned.

So, here's the question.  If people can become addicted to the internet in the same way they can become addicted to alcohol or drugs, how might that play out in the workplace?  At Ohio Employer's Law Blog, Jon Hyman theorizes that even if internet addiction is adopted as a mental disorder in the DSM, employers in the US ought to be able to legitimately regulate computer use at work without coming into violation of the Americans with Disabilities Act.  He states:

'Just as the ADA does not entitle an employee who claims sex addiction to sexually harass co-workers, the ADA is almost certainly not going to permit an Internet addict not to perform his or her job."

While I agree with the premise that employers have a legitimate interest in ensuring employees remain productive and do not misuse company technology, the pendulum in Canada in relation to the accommodation of disability in the workplace has clearly swung in the direction of employees.  As a result,  I'm not so certain that Canadian employers who attempt to take a strictly black and white approach to the enforcement of technology use policies (for example) won't come into conflict with human rights legislation.  Using Mr. Hyman's example, if an employer moved to terminate an employee in Canada for excessive personal use of the internet on work time and the employee then disclosed a potential disability connected to that internet use, I think an employer would be wise to stop and explore what the employee was saying before taking any further steps.  Some of the questions an employer would need to ask itself are:

• can the employee, through medical information, provide support for an addiction claim?  Can the employee show that the computer usage rule may well be prima facie discriminatory?;
• can the employer prove that any rule it has regarding computer usage is a bona fide occupational qualification (BFOQ)? (here, the three-part test set out in Meiorin would apply and the employer would have to be able to answer "yes" to all three questions below in order for the rule to qualify as a BFOQ)
  • was the rule adopted for a purpose rationally connected connected the performance of the job in question?
  • was the rule adopted in an honest and good faith belief that it was necessary to fulfill the work-related purpose?
  • is the rule reasonably necessary to accomplish the work-related purpose?  Specifically, can the employer demonstrate that it is impossible to accommodate the employee claiming internet addiction without imposing undue hardship on the employer?

A failure to engage in this kind of analysis, no matter how flagrant an employee's violation of the computer usage rule, will, in my view, only invite scrutiny on the part of human rights commissions -- at least in this country.

Further reading:

"Recognize Internet Addiction as a Mental Disorder, Journal Urges" - Edmonton Journal

"China tackles rise in 'Internet addiction'" - CTV.ca

Drug testing case moves on to Supreme Court of Canada

It's official.  The Alberta Human Rights Commission has sought leave to appeal to the Supreme Court of Canada regarding the Chiasson decision, which is not a big surprise.  This is the case involving pre-employment drug testing which I discussed in an earlier post.