According to the Ontario Human Rights Code, there are certain circumstances in which an employer will be required to “accommodate” an employee.
Some of the grounds that require accommodation include:
- religious observance
- older workers
- family obligations
- pregnant woman
Accommodation can range from having to change a schedule because the employee must work reduced hours, to having to buy additional office equipment such as ergonomic chairs or temporarily changing the employee’s duties (for example, having an assistant do administrative duties).
When we tell our dentist clients about this duty, they say “of course I will accommodate my employee” but quickly follow with “to what point”?
The Ontario Human Rights Code says that a court/tribunal cannot find that the employer is incapable of accommodating unless satisfied that the needs of the employee cannot be accommodated without undue hardship on the employer [s. 17(2)].
To determine what is undue hardship, courts/tribunals are only permitted to look at:
- outside sources of funding, if any
- health and safety requirements, if any.
Other considerations, such as inconvenience, employee morale, what it may look like to patients, etc. cannot be taken into consideration (unless they somehow tie into one of the three allowable considerations).
Let’s look at two cases where the “undue hardship” of the employer was assessed and the outcome.
Munroe v. Padulo Integrated Inc., 2011 HRTO 1410 (CanLII)
The Employee, Munroe was an account director at an advertising company. He had been employed with Padulo for several years when he found out he would need hip surgery. That surgery and recovery took about 18 months. Instead of providing Munroe with accommodation to return to work, the company terminated his employment. The company argued that was because the company was in the process of downsizing and cutting costs – Munroe’s job would have ended shortly anyway.
Here’s what the judge had to say:
Over less than two years, the company would shrink from about 31 employees to about 17. In January 2009, other individuals were being laid off or experiencing significant salary reductions. Further, the team on which the applicant worked was in the process of winding down the work with its major client. The work to which the applicant would have returned was not continuing, but was anticipated to come to an end. In the context of these specific circumstances, it would not be reasonable to expect the company to have brought the applicant back as an additional person on its payroll for a period of re-orientation, for the purpose of delaying a decision on layoffs until later.
The judge sided with the company and agreed that it had no duty to accommodate Monroe due to undue hardship based on cost.
ADGA Group Consultants Inc. v. Lane et al., 2008 CanLII 39605 (ONSCDC)
Lane was diagnosed with bipolar disorder, characterized by manic and depressive episodes with periods of stability. Lane applied for and was hired by ADGA as a software program tester without revealing his diagnosis. Once at work, Lane disclosed his diagnosis to a supervisor and told her how to identify when he was becoming manic and asked her to interfere if she observed any inappropriate behaviour. Ten days after starting work, Lane was dismissed from his job for having misrepresented his ability to do the duties of the job. As a result of the job loss, Lane went into a full blown manic episode, was hospitalized, then his condition turned depressive as a result of the financial burden of job loss and his marriage ended up breaking up. The employer was dismissive of their obligation towards Lane and tried to justify its lack of accommodation by arguing that Lane was a health and safety risk, that the supervisor was not able to watch Lane at all times, and that his manic/depressive episodes could lead to a national security issue if he told others classified information ADGA entrusted him with.
The Human Rights Tribunal disagreed. They said that Lane was fully capable of performing the job but had a disability and found that ADGA did not meet its procedural duty of accommodating Lane’s disability and awarded Lane $35,000 in general damages and $10,000 as damages for mental anguish and ~$34,000 in special damages for loss of salary. The tribunal also said that undue hardship cannot be established by relying on “impressionistic or anecdotal evidence or after-the-fact justifications”.
As you can see, it is open to an employer to argue that they would face undue hardship under one of the three heads enumerated in the Human Rights Code, but the success of the argument will depend in each individual case based on the circumstances.
If you are unsure about if or how to accommodate an employee, be sure to contact us and we can help to guide you through the process of accommodation.
If you have any questions about the OHSA, need advice about your obligations as an employer, or need help coming up with and implementing the new harassment policy, please contact us – we are your legal dental team.