Feature: Labour and employment landminesWritten by Jennifer McPhee Issue Date: October 2007
For employers and general counsel, labour and employment law can feel like a danger zone with the potential for frightening consequences jumping out at them from around every corner.
Canadian Lawyer INHOUSE has identified three potentially explosive situations that a corporation may grapple with at some point over the course of its lifespan, and asked the experts for advice on what to do.
Confronting employees about disabilities
Employers sometimes suspect that a downturn in an employee’s performance is related to a disability, but what happens when the employee denies they have a disability or that they require accommodation? Arbitrators and courts have determined that employers cannot simply ignore clear signals that an employee has a disability and proceed in a disciplinary way, so how should employers handle these delicate circumstances?
Experts say this situation most frequently arises when an employee has a stress-related problem, addiction, or mental-health disability.
“It actually comes up more than you would think,” says Cheryl Foy, vice president, general counsel, and corporate secretary for Tundra Semiconductor Corporation in Ottawa. She estimates that about 25 per cent of instances of declining performance can be linked to an illness that an employee may or may not be aware of.
Whenever an employee’s performance declines, Foy counsels the human resources or management team to consider whether the change may be related to a disability in every case.
She stresses that they should always treat the employee with respect, but advises talking to the employee about their performance (using concrete examples and time lines) and to ask questions around why the employee thinks their performance has slipped. The idea is that the employee will draw the connection themselves and request accommodation if they need it, she says.
“We might have suspicions that the disability is causing the performance issue,” she says, “but I would never want to draw that conclusion without input from the employee or confirmation from the employee. I wouldn’t just say, ‘No, you are sick so you can’t perform your job, and we’ve decided that.’ It’s not up to us to decide that sort of thing.”
But when an employee’s problem seems clearly related to an addiction (and the employee is not just someone who drinks occasionally and exercised the wrong judgment once or twice), it’s necessary to confront the problem and have that difficult conversation, she says. Employees with addictions usually exhibit clear signs and symptoms, such as consistently failing to hand in reports, frequently calling in sick on Mondays, or arriving at work in the morning reeking of alcohol.
Foy advises the company’s human resources professionals to document all of these incidents and to present concrete examples to the employee. She advises telling the employee what they think is causing the problem so that the employee can respond.
However, all of this should be done in a way that emphasizes the employer is not looking to penalize the employee, but wants to assist by providing accommodation, which typically involves paid time off and rehab, she says.
Since people with addictions have to be ready to deal with them, some employees will acknowledge they have a problem and accept the help the employer is offering, but others get extremely defensive and angry.
If an employee outright refuses to accept help, and his or her performance doesn’t improve, it’s probably time to end the relationship. “In my view, if you can’t get them to accept help, then there’s nothing you can do to accommodate them,” says Foy. “But you don’t want to make that judgment until you’ve tried just about everything to help them.”
Vancouver equality rights lawyer barbara findlay had to confront an employee about his alcohol addiction in her former position as a manager of a legal organization. The employee, who worked from a remote office, began coming to work intoxicated and even started missing court dates.
“What we did was say to him, ‘This is not acceptable. You are not carrying out the functions of your job. We are happy to make provisions for you to go to rehab, but you can’t come back to work. So if you don’t go to rehab, you are going to lose your job.’”