THE EMPLOYERS' EDGE
Tread Lightly: Employers are Reminded of Risks in Relying on Assumptions in Accommodation Cases
Employers are well aware of the duty to accommodate under the Ontario Human Rights Code (“OHRC”), and any employer who has been involved in the accommodation process knows that it is a difficult process filled with opportunities to make mistakes. The case of International Brotherhood of Electrical Workers, Local 636 v Tyco Integrated Fire and Security Canada Inc 2018 CanLII 80194 (ON LA) is a good reminder that even well intention-ed steps in the accommodation process can lead to liability.
In Tyco a grievance was filed regarding an alleged violation of the OHRC when a diabetic employee was asked to leave his work area to test his blood glucose levels and inject insulin as needed. The employer was a 24/7 call centre that did not assign specific work spaces to its employees; rather, employees would work in whichever cubicle was assigned or available for their shift. When the employee first raised the need for accommodation the employer simply allowed the employee to check his blood glucose levels and inject insulin as needed at his assigned work station. Everything was going smoothly, until a competing employer obligation was identified.
The workplace was unionized, and a union steward challenged the accommodation being provided on the basis of health and safety. It was suggested to the employer that it was unsafe to have the employee testing his blood glucose levels and injecting insulin at shared workspaces. The employer, likely wanting to avoid a health and safety grievance from the union, adjusted its accommodation plan and directed the employee to check his blood glucose and inject insulin in a nearby private office. In a perhaps unsurprising twist, this change to the accommodation plan prompted an accommodation grievance.
Despite having raised the initial health and safety concerns, the union argued that the employer breached the OHRC by requiring the employee to leave his work station as it stigmatized the employee and created a negative perception about his disability. At the end of the hearing the arbitrator agreed. It was determined that requiring the employee to use a private space on an assumption that there was a risk to co-workers without any scientific or medical evidence to support the assertion was discriminatory under the OHRC. The main obstacle for the employer was that there was no objective evidence to support the health and safety risk. As a result, the employer was ordered to revert to the previous accommodation plan and to pay $1,000 in damages.
This case is a stark reminder for employers that even the best intentions can go astray when managing accommodation cases. Employers who are dealing with requests for accommodation, as a best practice should engage with the employee requesting the accommodation (and if unionized, the union), consult with the treating practitioner as needed, and make decisions based on reliable evidence and facts rather than assertions. The lawyers at CCPartners can assist you with managing the accommodation process.
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