A recent case at the BC Human Rights Tribunal dealt with a complaint regarding an accommodation request. In Tsao v. Cariboo Dental Clinic (2019 BCHRT 81), an associate dentist alleged that her principals discriminated against her due to a physical disability and failed to accommodate her.
Dr. Hannah Tsao was an associate dentist at Cariboo Dental Clinic (the “Clinic”) in Williams Lake, BC. Her associate agreement stated that the Clinic would provide the services of assistants and hygienists as the Clinic sees fit.
According to Dr. Tsao, there was a “verbal understanding” that she would always have two Certified Dental Assistants (“CDAs”) to assist her (rather than non-certified “chairside” assistants). This was the case when she worked for the previous owner of the Clinic and for the first four months of her employment with the current owner, Drs. Zahedi, Naddaf and Bakhshi-Sarighieh Inc.
Starting around November 2016, the Clinic was unable to provide Dr. Tsao with two full-time CDAs. As a result of this, Dr. Tsao claimed that she suffered injuries while working, due to the fact that she had to use her arms and shoulder more. She claimed that she was overworking her dominant side and would go home in pain every day.
Dr. Tsao advised the Clinic of her need for accommodation. She asked that the Clinic provide her with her two needed CDAs or reduce her schedule substantially. When she told the Clinic that she could not work without this accommodation, the Clinic asked her for a date for her last day or service, which she took as a refusal to accommodate. She then advised the Clinic of her intent to terminate her associateship.
Associate’s Argument
Dr. Tsao argued that the Clinic did not make sufficient efforts to hire and schedule CDAs in a way that accommodated her disability, and that she was not granted an adequate amount of break time. She asserts that while she was often staffed with only one CDA or none, other dentists at the clinic were provided with two (It is important to note here that one of the other associate dentists was the previous owner of the practice, and it was written in his contract that he would have two CDAs).
Clinic’s Argument
The Clinic argued that they did not refuse to accommodate Dr. Tsao, but rather were actively recruiting for CDAs. They stated that there was a shortage of CDAs in BC and in Williams Lake in particular. In addition, they alleged that some of their CDAs did not want to work with Dr. Tsao.
The Clinic also does not believe that Dr. Tsao met her obligation to participate in the accommodation process. According to them, Dr. Tsao’s only proposed solutions were that she either had two CDAs working with her at all times or would be released from her associate agreement. On multiple occasions, the Clinic requested “information regarding her limitations and/or restrictions on her ability to perform the services and any further accommodations that could assist her in carrying out the [associate agreement].” The Clinic was never provided with a detailed description.
Decision
At this point in the proceeding, the Tribunal has only decided that Dr. Tsao’s complaint meets the low bar to proceed to a full hearing since it was not obvious that her complaint had no reasonable prospect of success. While there was evidence that Dr. Tsao was not accommodated up to the point of undue hardship, there was also evidence that she did not adequately participate in the accommodation process. The judge did not give an opinion as to whether Dr. Tsao’s complaint was made in bad faith or an opinion regarding the sufficiency of the Clinic’s efforts to accommodate her.
The judge encouraged the parties to attempt to settle, but this will be an interesting case for dentists to follow if it does proceed to a full hearing. Will the Tribunal consider it reasonable for an associate to demand two assistants at all times, or would that lead to undue hardship for a principal?
While this case occurred in BC, the human rights complaint process works similarly in Ontario. In general, an employer must give equal access and opportunities to employees who fall under Ontario Human Rights Code-protected grounds (race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability), up to the point of undue hardship for the employer.
Takeaway for Dentists
If you receive a request for accommodation from an associate or an employee, make sure you know your rights and limitations regarding requests for information, as well as your obligations to accommodate up to the point of undue hardship.
Consider these 10 steps when dealing with an accommodation request:
- Consult with and follow your office policies on accommodation (if any).
- Receive your employee’s/associate’s written statement of their need for accommodation.
- Call DMC LLP and obtain legal advice.
- Request all evidence that is reasonable in the circumstances.
- Determine if an accommodation is required.
- Discuss the employee’s request, determine their functional abilities, and explain the available options to accommodate them in your dental practice.
- Generate and finalize a confidential accommodation plan with the employee’s input, noting any relevant timelines, information, and agreements.
- Implement the accommodation (hire any necessary replacements, purchase any necessary items, etc.).
- Monitor the plan, continue to request reasonable evidence, and make agreed-upon changes as necessary.
- Continue working with your employee and focusing on providing the best possible dental treatment to your patients.
You don’t want to get yourself involved in a human rights complaint, so consult with DMC LLP before responding to any requests for accommodation!
Another important takeaway from this case is as follows: If you are purchasing a new practice, always make sure that the seller discloses any non-written terms or benefits that are provided to their employees. You do not want to get involved in a situation where an associate believes that they are entitled to two assistants at all times when such a term was never put in writing.
Likewise, if you are an associate, always make sure that the terms of an agreement that work to your benefit are put in writing!
