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Your Staff Must Co-Operate in Obtaining Accommodation

By August 23, 2016November 28th, 2019Employment Law

Remember – staff have to co-operate in the accommodation they request.  It is not a “one-way street” – its a process where the two parties work together to find the best solution.

An important part of working together to find the appropriate accommodation is, of course, requesting the accommodation.  If an employer has no idea an employee needs an accommodation, then the employer is going to act normally and not make any changes to the employment arrangement.

Well, the same goes for the employee: if an employee needs an accommodation, they need to inform their employer of their limitations and how the employer may accommodate them in the workplace.  The employee also cannot go against company policy and expect the employer to allow it after-the-fact.

Case in point:  Mr. Burton out in British Columbia (Burton v. Tugboat Annie’s Pub, 2016 BCHRT 78).  He was a bartender and assistant manager of a restaurant called Tugboat Annie’s Pub (sounds like a nice place actually).  The Pub, like many workplaces in Canada (including dental offices) has a workplace policy that said employees must not consume (or be under the influence of) drugs or alcohol while working.  We know many dental offices have similar policies since they operate in a health care environment.

Unbeknownst to “Tugboat Annie”, the bartender smoked marijuana while taking a break from working.  (He also apparently had an attitude problem, was on his cell phone while at work, was impolite to co-workers and customers, may have sexually harassed a female co-worker, and gave out discounts without approval).

When Mr. Burton was caught smoking marijuana, the employer fired him.

And it was only after the termination that the employee claimed that he used marijuana for chronic pain.

The employee took the employer to the BC Human Rights Tribunal, saying the employer discriminated against him due to his physical disability.  The Tribunal threw out his claim of discrimination.

The Tribunal ultimately found that there was no evidence that the employer was even aware that the bartender’s marijuana use was related to a physical disability.  In fact, the evidence shown to the Tribunal was a prescription for marijuana dated one month after his dismissal.  From my read of the case, it appears that the employee went to the doctor’s office immediately after the termination to obtain the official diagnosis and prescription.

Since there was no clear link from the disability to the termination, the case was thrown out.

Lessons for Dentists

As employers in Ontario, all dentists need to be aware that they have certain obligations to their employees with regards to human rights and accommodations.  But at the same time, dentists can’t read minds and they can’t tell the future.  And so, if an employee has a genuine medical issue (or family or religious or another relevant issue), they need to tell their employer that they need an accommodation!  They can’t try to excuse their behaviour or misconduct, after-the-fact, as them needing an accommodation because the accommodation is a two-way street.

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.