Employers have a clear-cut duty to accommodate disabled employees in most cases, but that's easier said than done, lawyers say. Determining legitimate claims from instances where employees are simply milking the system can be challenging, as can establishing what constitutes a proper accommodation. Get it wrong, and employers can be subject to a costly and drawn-out legal fight on issues that are tough to disprove.

Lawyers say most Canadian employers are committed to the values associated with their legal duty to accommodate disabled employees, and the majority of employee claims are legitimate. However, an employer may occasionally suspect that an employee is claiming a disability to lighten their load, get a better shift, or avoid coming to work for a while.

According to Stewart Saxe, a partner at Baker & McKenzie LLP in Toronto, our natural tendency to want to spend more time on a warm sandy beach can get the better of some people, and he sees it causing hardship in some industries, such as manufacturing.

 "I think it's creating problems, where people who don't feel like coming into work are finding reasons to claim they are disabled," he says. "[They'll say,] 'I find work stresses me.' Well, I've got news. I find work stresses me. Clearly, the challenge for an employer is that there is a point where stress is a real mental disability, and where it's not."

"So that makes it difficult for anybody to evaluate whether an employee has a legitimate claim or not."

Allowing employees to take advantage of the duty to accommodate can seriously hurt workplace morale, because other employees pick up the slack and often wonder why employers don't do more to sort legitimate claims from exaggerated ones. However, employers often feel their hands are tied. Is there anything they can do?

Honda case on appeal

In the record-setting case Keays v. Honda Canada Inc., Honda made a number of terrible blunders when dealing with Kevin Keays, a long-time and conscientious employee with chronic fatigue syndrome, and eventually terminated him for frequent absences caused by his illness. Last September, the Ontario Court of Appeal reduced an earlier $500,000 punitive damages award to $100,000. However, in total, the most recent decision cost Honda $532,500, including the damages award, legal cost of both proceedings, and 24 months' pay and benefits. That's despite the fact that the final word is not in: Keays v. Honda has now gone to the Supreme Court of Canada.

Although punitive damage awards are rare in employment cases, this decision demonstrates that the consequences of misjudging the situation, and dismissing disabled employees and failing to accommodate, can be grave.

With that in mind, it's crucial to always proceed reasonably and respect the employee's dignity, says Kristin Taylor, a partner at Fraser Milner Casgrain LLP in Toronto. "No matter the condition or your skepticism, never demean the employee," she says.

Assess each claim individually

All requests for accommodation must be assessed individually and meaningfully, be fully documented, and employers must consider all options, even if they eventually reject them, says Taylor. When employers reject accommodation measures, it's imperative to collect and document evidence about the impact of the accommodation sought, and to both document and articulate rationales.

That said, one of the very first steps for employers or human resource professionals is to evaluate whether the condition the employee is seeking accommodation for is one that is covered by the duty to accommodate. When it is, employers should assume the claim is valid, but they can also take reasonable steps to ensure it is legitimate, says Saxe.

If the employee is requesting accommodation, the employer is entitled to know whether the employee has a disability, which can require the revelation of medical information that would otherwise be confidential, says Taylor. Employers often accommodate injuries that don't constitute disabilities in order to avoid lost time claims or because they need the employee's services._In these situations, the employer is only entitled to functional-abilities information, in order to modify the employee's duties, she says.