Authors: Bret Lercher, David Negus, Devin Wehrle, Kristin Gibson, Sarah Carr, Shandra Czarnecki
This blog is part two of a three-part blog series outlining the essential points of an employer’s duty to accommodate employees with mental disabilities.
In our previous blog on mental health in the workplace, we looked at the distinction between mental illness and ordinary stress and anxiety. We’ll now turn our attention to ways employers should approach their duty to accommodate employees with mental disabilities.
The Supreme Court of Canada and various human rights tribunals have articulated that in considering the accommodation process, an employer’s process and efforts to accommodate an employee will be as important as the accommodation actually implemented. In this blog, we’ll look at the accommodation process, as well as how far employers are required to go in their accommodation efforts.
The Accommodation Process
Before deciding whether you are able to accommodate an employee, it’s important to follow a proper accommodation process — especially if you don’t want an arbitrator or tribunal questioning your decision.
First, you should listen to an employee’s request in good faith. This doesn’t mean you have to accept everything they say at face value, and you are entitled to ask an employee to support what they tell you with medical information. But you should approach the matter with an open mind, and avoid making any assumptions about the employee.
Second, obtain an expert opinion or advice when needed. Medical advice can be an important tool, and you should obtain it, not as a matter of course or as a means to deny an accommodation request, but for the specific purpose of understanding the impact a condition has on an employee.
Once you have gathered your information and sought advice, your next step should be to actively investigate proper accommodations. Consider what can be done to accommodate the employee while minimizing any disruption to the individual or other employees. The employee and (where applicable) the union should be involved in this process, and it should unfold in a timely manner. Do not drag your feet once an employee has made a request.
It’s important to note that your accommodation process must be personalized to the individual making the request. You can have pre-identified steps in your process, but your actions should be tailored to the employee at issue. The employee and union should be engaged in the process and should have the ability to provide comment or suggestions for your consideration and eventual conclusion. This also makes it more difficult for them to complain about the process or its outcome.
In determining whether an employee can be accommodated, employers are required to consider the following possible common accommodations:
- changing the physical workplace;
- changing reporting or training structures;
- changing working rules or expectations;
- altering the employee’s job duties, hours of work or schedules;
- providing a leave of absence to the employee; or
- addressing workplace misconduct through non-disciplinary means.
Accommodations Must Be Medically Necessary
Employees aren’t entitled to an accommodation simply because they have asked for one. Some employees and their doctors may use the accommodation process to make polite requests for adjustments in the workplace.
For example, an employee with a mood disorder might suggest it would be easier if he were transferred to a branch closer to his home, or if he were put under the watch of a different supervisor. These requests won’t cut it — for an employer to implement an accommodation, it must be medically required as the result of a disability.
If you receive a polite request like this from an employee, you can refuse to implement it until the employee provides medical information indicating the accommodation is necessary. You should explain that you are willing to accommodate with the proper medical information, but until that information is provided, it is not something you are prepared to do.
An employer may also refuse to provide accommodation if doing so causes them undue hardship.
This is a difficult concept to administer because undue hardship cannot be precisely measured. However, if you can show that you made serious efforts to accommodate and explain why it was not possible to do so, an adjudicator will be less likely to second-guess your decision.
The onus is on the employer to prove undue hardship. To do this, you must show that implementing an accommodation would constitute a fundamental change to the working conditions and/or result in conditions where the employee would be unable to perform his duties for the foreseeable future.
When an accommodation is in place, you may have to tolerate a certain level of inefficiency or suffer a hit to your bottom line, or your workforce may be inconvenienced by having to work harder. None of this qualifies as undue hardship.
Undue hardship occurs when an accommodation would create onerous conditions such as intolerable financial costs or a serious disruption to your operations. Factors that the Supreme Court of Canada have found contributed to undue hardship include:
- financial cost;
- interference with a collective agreement;
- workplace morale;
- interchangeability of employees and facilities;
- size of employer; and
- safety and efficiency concerns.
With respect to financial cost, you bear the onus of proving not only what the cost is, but that it is onerous to the point of being undue. You will not be required to create a superfluous position that serves no purpose, or tolerate material substandard performance or extreme unpredictability in the employee’s attendance at work.
If an accommodation requires a substandard departure from the terms of a collective agreement, you may be able to argue that your normal business operation has been unduly impaired — particularly if there is a material impact on the rights of other employees, such as their job security. If an accommodation results in another employee being laid off or suffering a loss of hours, that would be an undue hardship.
If workplace morale were to suffer as the result of an accommodation — if, for example, employees are consistently short-staffed or overworked due to a disabled employee’s unreliable attendance at work — that, too, could be considered undue hardship. But the Supreme Court has stated that the impact on employee morale must be based on well-grounded concerns about their rights — anything else is irrelevant.
When an accommodation would pose a risk to the safety of other employees or the public, that would also establish undue hardship.
Undue hardship is a high threshold. In the majority of cases, an employer will not be able to establish undue hardship and will be required to accommodate the employee.
Next week, we’ll look at an employer’s duty to inquire when they suspect that an employee’s work performance may be impacted by a mental illness.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
Join us at the 2019 Manitoba Labour & Employment Law Update for a more in-depth analysis of accommodating physical and mental disabilities in the workplace, and learn the latest developments in labour and employment law.