Abstract

Employers are increasingly at risk of exposure to significant financial liabilities when they don't understand the scope of their accommodation obligations and as a result don't get it right. A clear trend in human rights decisions that started in 2001 and is gaining momentum in 2003 discloses that employers who fail to appreciate and properly discharge the duty to accommodate will find themselves at risk of significant damages in terms of restitution (making the employee whole for any and all economic loss attending a failure to accommodate in accordance with current standards) as well as significant general damages for the injury to feelings and self-respect attending the violation of the employee's right.

It started with Metsala v. Falconbridge Ltd. (February 8, 2001). Falconbridge failed to return a female employee to work in accordance with her documented medical restrictions. The employee communicated her desire to return and provided written medical restrictions to the employer. The employer did not return Metsala for a further eighteen months after she presented her restrictions. The human resource manager made assumptions that the employee was unsuitable for various contract work that was available during this delay in a return to work. Those assumptions or presumptions included that she lacked experience, would require training, and that the work would be too stressful. These assumptions were made in the absence of any consultation with the employee or the employee's attending physician.

The Tribunal Identifies Where The Employer Went Wrong

The Tribunal confirmed that the Code requires proactive inquiries and assessments on the part of employers in connection with identifying disabilities and assessing accommodation. The Tribunal found that the employer failed to make appropriate inquiries and failed to gather accurate information to assess the accommodation entitlements of the employee. As a result, the employer exposed the employee to prima facie direct discrimination. The Board held that the employer breached its duty to accommodate by failing to consider any accommodation measures between the period of June 1992 and December 1993. The employer erroneously took the position that the complainant would have to wait for a vacant position for which she was qualified to perform. This position falls far short of the duty to accommodate.

Key Employer Errors

Failed to understand the proactive nature of the employer's accommodation obligations (i.e. need to secure and properly assess all relevant input).

Failed to appreciate the scope of the duty to accommodate; particularly that it goes beyond offering positions that an employee is currently qualified for.

Erroneously acted on impressionistic assumptions about the employee's abilities and skills rather than securing and evaluating relevant information from the relevant parties, the employee and her attending

Costly Errors

The employer errors that prevented it from properly discharging its duty to accommodate had serious financial implications. The damages awarded to the employee included:

  1. 18 Months of Lost Wages Economic loss: employer to reimburse for wage loss of full salary for approximately eighteen month period (plus pre-judgment interest at the rate of 8.3% from March 1993 to 2001).
  2. General damages: $10,000

It is significant that the Tribunal noted in making this general damage award that since the Shelter Corp. decision of the Divisional Court, there is no ceiling on general damage awards.

Two recent decisions in the spring of 2003 highlight that Human Rights Tribunals and courts are getting tough about the obligation of the employer to get accommodation right and are determined to impose significant financial consequences on employers who don't.

Morris v. British Columbia Railway (May 1, 2003)

The employer was held to have discriminated against Mr. Morris based on disability when the employer terminated Mr. Morris following his return to work from a bout of depression. The termination occurred after Mr. Morris declined the employer's offer of a challenging full-time assignment. Mr. Morris had worked for the employer for over thirty years. He commenced experiencing bouts of depression in 1993. The first episode was resolved by 1995. The second episode commenced in 1997. In June of 1998, Mr. Morris returned to work with medical documentation confirming that he was functioning at about 80% his normal capacity. The medical input indicated that while he could return to work, Mr. Morris remained functionally impaired. In the context of this medical input, the employer offered Mr. Morris a demanding, full-time position and terminated his employment shortly after he declined the position.

Where The Employer Went Wrong

The Tribunal found that the employer failed to properly consider the medical input. The Tribunal determined that the employer improperly ignored the employee's input with respect to his condition.

The adjudicator highlighted that the employer is obliged not only to properly consider a doctor's assessment with respect to an employee's fitness to return to work, but also to consider the employee's concerns as to whether or not his performance will be affected by persisting disability.

"All relevant factors must be considered by the employer dealing with an employee with a disability, including medical evidence, its own observations, and the employee's own comments and concerns."

The employer's failure to properly utilize the medical input and failure to consider the employee's input resulted in a discriminatory termination by the employer and a failure to accommodate the employee.

Accommodation is a multi-party process - Employers who fail to secure and properly use input from all relevant parties risk getting it wrong!

The Cost Of The Employer Not Listening Carefully To The Doctor And Employee?

The adjudicator awarded pecuniary damages to make Mr. Morris for all economic loss and general damages.

1. Damages for economic loss - ordered payment of two years' salary(*in addition to the severance that Mr. Morris was paid in connection with his termination), plus other economic loss - i.e. pension premiums, medical expense, legal costs.

2. General damages: $5,000

The significant financial risk to employers of not listening to the accommodee and not properly considering the input of the accommodee in accommodation assessments, is evidenced again in another recent decision.

L'Archeveque v. Calgary (City) (March 2003)

L'Archeveque, an employee with 22 years' service was diagnosed with repetitive strain injury in both her arms and neck. She was off work due to a period of total disability for five months. She returned to work in January of 1997; to a different job. The WSIB determined that her injuries were permanent and defined permanent medical restrictions communicated to the employer. The employer ultimately assigned the employee permanently to a part-time position as an Airport Unit Clerk. The employer took the position that the employee was medically restricted from working full-time and deprived her of the opportunity to work full-time. The City had rules that barred employees from working two part-time jobs. L'Archeveque persistently took the position that she was capable of working full-time as long as her restrictions were accommodated. When the employer failed to respond to this input, the employee pursued her claim to full-time work by filing a human rights complaint that was successful.

Where The Employer Went Wrong?

In evaluating this employer's approach to accommodation, the panel held as follows:

  1. That the employer made no effort to accommodate Ms. L'Archeveque between April 1998 and April 2000, once they assigned her permanently to a part-time clerk position.
  2. The employer failed to accommodate the employee consistent with the scope of their accommodation obligation: failed to accommodate to the point of undue hardship.

The Employer's Financial Exposure?

1. Salary loss - damages of $15,799.19

2. General damages - $9,000 - awarded for injury to feelings and self-respect.

The panel's determinations were reviewed on appeal by the Court with the following results:

The Court upheld the panel's substantive findings in confirming that the City's misapprehension of the employee's medical restrictions resulted in the City's failure to properly accommodate. General damages reduced to $4,000.

Lessons To Be Learned About Getting The Accommodation Obligation Right

A failure to understand the demands of the multi-party nature of accommodation issues and a failure to get it

Properly discharging the duty to accommodate demands that employers take the following steps:

  1. Respect The Multi-Party Nature Of Accommodation Assessment

    Ensure that you access and properly consider all relevant information and input including:

    Employee input
    Medical documentation

  2. Ensure that those making accommodation decisions are accessing, assessing and making affective use of the input (i.e. listen to and respond appropriately to the employee's input as to what they can and cannot do).

    Use medical input to properly assess your accommodation obligations (i.e. avoid impressionistic assumptions about an employee's abilities or inabilities).

The foregoing cases illustrate the significant risk that an employer and its management group will be at if they fail to understand and discharge the complex obligations that attend the duty to accommodate.

Employers who make impressionistic assessments of whether an employee is fit to be in the workplace or impressionistic or arbitrary decisions about what work to assign to an employee with restrictions (i.e. modified, part-time) risk failing to accommodate to the legal standards required today.

A failure to accommodate in a timely manner or in accordance with the standards required will expose an employer to significant damages for all economic loss the employee experiences.

It is clear that Tribunals and Courts are demonstrating a commitment to aggressively use general damages to encourage employers to seriously commit to appropriate accommodation activity and to compensate employees for the injury to feelings when they are not accommodated consistent with their legal entitlements.

Summary Of Steps To Getting It Right!

  1. Knowledge of Current Demands of Accommodation: Employers need to develop a detailed understanding of the scope of the duty to accommodate, the scope of both the process and substantive obligations. Your organization needs to understand that accommodation demands more than just keeping the employee in the workplace (i.e. modified work, available work, part-time work).
  2. Working Effectively with Multi-Party Process: Employers must develop an understanding of the multi-party nature of the duty to accommodate and its significance; an employer obligation to access to and properly consider relevant input from all relevant parties in connection with identifying appropriate accommodation.
  3. A Genuine Commitment to Proper Accommodation: A lack of real commitment to accommodation by employers and their management group will invariably result in the kinds of istakes made in the cases discussed above. These mistakes can cost thousands of dollars in connection with a single employee (i.e. $10,000 general damages, months or years of back pay).

Some organizations respond to their accommodation challenges by waiting to see if the accommodation challenge will disappear (i.e. delaying or resisting return to work activity; limiting accommodation opportunities to modified duties or part-time work). This recent trend in the cases indicates that employers will be held financially liable for all economic loss of an employee who suffers financially in connection with not being accommodated consistent with the current standards. In addition, employers will also be exposed to significant general damages for the employee's failure to be provided with full and appropriate accommodation. The clear message to employers is get serious - get knowledgeable - and get going on properly discharging your duty to accommodate.

About the Author

Barbara Humphrey is a Partner at Stringer, Brisbin, Humphrey law firm in Toronto.
She can be reached at bhumphrey@sbhlawyers.com or 416-862-1616, ext. 290.