Legal report: Dealing with the duty to accommodate

The Honda case and its punitive damage award highlight the downside of failing to accommodate disabled employees.

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.

Gather the proper information

Sometimes employees seeking accommodation supply doctor's notes that don't provide enough information. In these circumstances, Taylor often advises clients to ask the employee's treating doctor - always through the employee -_for more information or to fill out a functional abilities form. Employers can give the doctor a job description, describe the physical demands of the job, and provide ergonomic analysis so that he or she can comment meaningfully on the employee's limitations and suggest recommendations for accommodating the employee, she says.

Christopher Stewart, a partner at Stewart McKelvey in Moncton, also advises clients to be proactive when

on the receiving end of an overly vague doctor's note.

"Don't just take a doctor's note that says, 'Off for four months for medical reasons,' " he says. "Find out a little more detail; just what is necessary to make a fair determination about whether the duty to accommodate extends to the request that's being made."

Independent medical exams

If a doctor is unco-operative or continues to provide insufficient information, it may be time to require the employee to take part in an independent medical examination paid for by the employer, says Taylor.

In appropriate situations - especially when an employee is claiming an ongoing permanent impairment - Saxe often advises clients to send employees to a medical specialist with training in workplace issues for proper functional abilities testing, which costs roughly $1,000 (if it's a workplace injury, workers compensation pays for the testing).

"In order for employers to ensure the claim is legitimate, especially if they have concerns about legitimacy, . . . they need to make sure they get to the right medical facilities and get the right tests done.

"It sets a good example in the workplace that the employer is going to be helpful and assist those with legitimate claims, but is also going to sort out those who don't have legitimate claims and deal with them appropriately as well," he says. "So doing this right is productive for everybody."

Keep in mind, though, that the decision of whether to ask for more information should be made on a case-by-case basis, and employers should avoid automatically applying a policy or process to every case, says Michael Fitzgibbon, a partner at Borden Ladner Gervais LLP in Toronto. "Case law seems to suggest that accommodation is an individual exercise, not dictated by policy, necessarily," he says.

Last year, in British Columbia Teachers' Federation v. Surrey School District No. 36, an arbitrator ruled that the school board acted unreasonably when it wouldn't process a teacher's request for a reduced workload unless he supplied more information about his diagnosis, treatment, symptoms, and functional limitations, in addition to two medical certificates already supplied. In this case, the collective agreement allowed for a reduced workload with a standard form medical certificate.

In the majority of situations, the disability must be grounded in a medical impairment or medical condition, but not always, notes Taylor. For example, in Desormeaux v. Ottawa (City) in 2005, the Federal Court of Appeal reinstated a bus driver with back pay more than eight years after she was dismissed for missing 365 workdays over a nine-year period because of a host of disability-related ailments. The lack of a specialist's report to support the existence of migraine headaches, which accounted for 13 per cent of the absences, was not fatal to the finding of disability, says Taylor.

Forcing someone to deal with a disability

Employers must sometimes grapple with an employee they suspect has a disability but won't admit accommodation is required. This situation can arise when an employee has a drug or alcohol addiction or mental-health disability. While employers might be tempted to accept this at face value and proceed to deal with the employee in a disciplinary way, arbitrators and human-rights tribunals have determined that employers cannot look the other way and ignore clear signals that an employee has a disability, says Michael Coady, a partner at Harris & Company in Vancouver.

Employers can take some comfort in the fact that while it is the employers' responsibility - where possible or to the point of undue hardship - to find a solution to a request for accommodation, employees are also obligated to participate in the process and can be held accountable when they don't co-operate or are dishonest.

"If the employer makes a proposal for accommodation, which is a reasonable proposal for accommodation, then the employee has to be prepared to go along with it, even though it may not be a perfect solution from the employee's perspective," says Coady.

When an employee refuses or fails to participate, that can spell the end of their employment, says Saxe.

All this is new ground for many employers, and the list of dos and don'ts to consider when facing a request for accommodation is, most certainly, more exhaustive than this article. For the most part, employers want to do the right thing, says Saxe, but need advice.

"If I run a plant making widgets, I don't know whether a major depressive episode needs three weeks off work or 16 months off work," he says. "The inquiry I receive the most often is, 'Here is the situation, now what the heck am I supposed to do?' "

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