Employers Fired Up Over Their Duty to Accommodate

 

Employers often think they can fire anyone whose disability interferes with job performance. This is unfair and illegal. When an employee has difficulty performing certain tasks because of a disability, the employer is required to accommodate the needs of the worker.

The right to accommodation extends from human rights legislation which states that no matter when, where or how the disability arose, an employer must make reasonable modifications to the work environment. Physical, sensory, psychiatric and hidden disabilities are all conditions that require accommodation under federal or provincial human rights codes.

Three individuals recently won bittersweet victories against their employers over the issue of accommodation. Canada Post, Coca-Cola and the Town of Midland, like many other employers, only became acquainted with their legal duty to accommodate through the adversarial process of a labour arbitration.

There are better routes to education and more productive ways of spending resources.

The three individuals all happen to be union members, but it must be emphasized that the right to accommodation originates in human rights legislation and is available to EVERYONE. All persons with a disability, whether protected by a collective agreement or not, have a right to ask
for and receive workplace adjustments that enable them to pursue gainful employment.

1. SHERRY BROOKS, Postal Clerk, North Battleford, Saskatchewan A Canada Post employee since 1985, Brooks injured her back in 1988 while loading a box onto a conveyor belt. After a six-week rehabilitation period, Brooks returned to work with a clean bill of
health.

A second on-the-job back injury occurred in August 1989. After the second injury, Brooks was off work for almost a year while undergoing tests in North Battleford and Saskatoon. The diagnosis was spondylolysis, a degenerative condition which involves a slackening of spinal
ligaments.

By July 1990, Brooks’s doctor had given her the go-ahead to return to work, with the restriction that she not lift more than 10 pounds. The “light duty” assignment worked out well initially, until the beginning of 1991 when the post office underwent a reduction in staff hours. Management said that the small size of the post office in North Battleford made it impossible to continue to accommodate Brooks’s lifting restrictions.

On May 21, 1991, Brooks was terminated. She recalls that “the impression was they could get rid of me and have someone who was capable of doing all the range of duties, not just the post office light duties.”

Later that year, Workers’ Compensation cut off her benefits and by spring, 1992, her disability insurance was also terminated, because the insurer did not feel that Brooks’s physical restrictions made her completely incapable of work. During this same period, Brooks was diagnosed with cancer and began radiation treatments.

Regional Grievance Officer Gord Fischer handled Sherry Brooks’s grievance arbitration. Fischer says: “It really surprised me how hard Canada Post fought this thing. Sherry should never have been off work in the first place.”

Fischer, who does arbitrations for the Canadian Union of Postal Workers (CUPW) throughout the prairie provinces and the Northwest Territories, believes the “cost alone would have been staggering [for Canada Post]. I can’t believe the resources they threw behind it.” Not only was a company lawyer flown in from Ottawa for nine hearing dates scheduled over the span of a year, but the employer also had an expert witness do a functional analysis of every single job duty in the North Battleford office.

In the end, Arbitrator Ken Norman was not impressed with the employer’s case, stating that “I find that the corporation has failed, from May 1991, onward, to address its responsibility to accommodate yet another employee with a permanent partial disability, with a stable back
condition, whose physician has confidence in the employee’s ability to handle much of his or her former job.” Sherry Brooks was reinstated with the permanent lifting restrictions.

What is remarkable about the Brooks decision is the arbitrator’s willingness to put a dollar figure on the potential cost of accommodating Brooks. Arbitrator Norman found that accommodation was required even if it would “add another $10,000 to $12,000 to the… annual deficit of the North Battleford office.”

Now cured of her cancer and happy to be back at work, Brooks says: “My back doesn’t cause me any problems. I’ve learned to live with it and adjust around it. When I do feel the back getting sorer than usual, I ease off. I watch everything I do… for my own protection, so I don’t get reinjured.”

2. VINCENT CHENARD, Quality Controller, Moncton, New Brunswick Vincent Chenard has had epilepsy and grand mal seizures since he was 17 years old. Employed as a quality controller for a Coca-Cola Bottling Plant in Moncton for a decade, Chenard had only
experienced two on-the-job seizures. All that changed in 1991, however, when he had two powerful seizures in the plant.

The employer fired Chenard, explaining, “It is only with concern for your safety that I must reaffirm the company’s position that it would be an unsafe situation for you to work in the plant, considering your current epilepsy problem.” The company also considered Chenard’s condition a
safety risk for his co-workers.

Chenard fought back. “I had a choice of staying home in a padded room, or going to work to support my family,” he says. He chose the latter. Retail, Wholesale and Department Store Union (RWDSU), Local 1065, filed a grievance claiming unjust termination and discrimination under the “New Brunswick Human Rights Code.” Chenard asked to be re-instated into an accommodated position as a bottle washer, since “that was the only job I could do where I wasn’t close to fast forklifts or standing on high platforms.”

Arbitrator Inns Christie agreed with Chenard. He concluded that Chenard’s co-workers would not be at risk if Chenard were reassigned and would not have to handle caustics or drive a forklift or other motorized machinery.

Christie decided that while reassignment would also go some length to protect Chenard, there would always be some danger to him from the very nature of the plant — the concrete floor and all the sharp corners and hard objects. Even so, Christie concluded that “the grievor must, in the end, be the one who decides whether to run the risks associated with even the safest jobs that he is qualified to do in the employer’s plant.”

Christie ordered the bottling plant to: reinstate Chenard to the bottle washing area and pay him for all lost income; train more employees in first aid and ensure that one such person is present during Chenard’s shifts; give Chenard the option of working only the night shift, since his
epilepsy is less prevalent then; and renovate the bottle-washing area to make it safer by erecting safety rails, wire mesh and padding.

Chenard returned to work in early 1993 and the accommodation was successful — except for the safety renovations, which the bottling plant never bothered to do. Unfortunately, in February 1994 the plant closed and Chenard was laid off along with 65 other workers.

Local RWDSU representative George Vair points out that although employers have always seemed willing to make changes in the design of the workplace to increase productivity, “they have been unwilling to absorb whatever modest costs are involved in accommodating workers
with any kind of disability.”

Today, Chenard is philosophic about his win. “Justice is in the eye of the beholder,” he says. “My ability to win against Coke was my satisfaction, but it was tough to look into the eyes of my kids and not be able to give them things while I was off work.”

For Chenard, his seizures are “no big deal.” He expects to experience one “every 18 months or so.” With the support of family and friends, life goes on, and Chenard is now getting retrained in computer management at Atlantic Business College.

KEN STRAIN, All-Purpose Worker Midland, Ontario September 1992, was a tumultuous time for Ken Strain, who had a heart attack while attending a baseball tournament. “I thought it was just a pulled shoulder,” he recalls. After he finally went to the hospital, he stayed in intensive care for two weeks.

The following spring, Strain had an operation to open up his clogged arteries, and by fall, 1993, he was feeling well enough to return to work on a part-time basis. His doctor provided a letter indicating that he was capable of light duties, including driving a truck, with restrictions on heavy upper-body work such as shovelling and raking.

Strain’s employer, the Town of Midland, refused to take him back, stating that since Strain had been off work for more than a year, the OPSEU (Ontario Public Service Employees’ Union) collective agreement entitled the employer to automatic termination. Strain filed a grievance, alleging unjust dismissal and loss of benefits.

At the hearing, the union argued that the “deemed termination” clause in the collective agreement should not apply to Strain or other individuals with a disability because, under the “Ontario Human Rights Code,” this is discrimination.

Arbitrator Owen Gray agreed, stating that “the collective agreement provisions… cannot have modified the rights and obligations of the parties and the affected employees under the code.” Whenever there is a conflict, human rights legislation will always supersede provisions in a
collective agreement. In his July 1995, award, Gray ordered the Town of Midland to restore all lost benefits, seniority and wages owing to Strain for the period he had been denied work.

Anticipating a loss, however, the Town of Midland took Strain back to work in 1994. At that time, Strain said, “I should have been back a year ago. There’s nothing I’m doing now that I couldn’t have done last August.” He stresses that he is capable of performing almost all his duties. “There’s no heavy work involved except assisting with shovelling.”

Strain is cautiously optimistic about the future. He stopped smoking and does a lot of walking these days, “to keep myself mobile and build up my strength.”

PSYCHIATRIC DISABILITIES
An often overlooked area of disability rights is the duty of employers to accommodate workers with a psychiatric disability. For example, in 1985, Brett Chamberlin of Ontario took some time off from his employment as a service manager with Stirling Honda because of depression
resulting in weight loss and crying spells. When he wanted to return to work, his employer would only reinstate him as a car salesman. Chamberlin refused the sales position and was fired. The Ontario Human Rights Commission found this to be discrimination on the basis of mental disability and ordered the employer to pay $2,500 in compensation.

“There is a general lack of education about the stigma of mental illness,” says Lana Frado, a freelance consultant with the Canadian Mental Health Association (CMHA). She adds, “Employers have a duty to accommodate, but there’s no one out there teaching employers or
unions about our needs. We’re always going to be those crazies. ”

Frado also stresses the difficulty many individuals have in asking for accommodation. Whether in the hiring process or during employment, “there is a fear of disclosure because of the stigma and confidentiality issues.” With an 80-per-cent unemployment rate, this group of consumer survivors has great difficulty integrating into mainstream employment.

Frado’s recent work at the CMHA produced the publication, “Diversity Works: Accommodations in the Workplace for People with Mental Illness.” For practical solutions to all types of accommodation issues, Frado also recommends “Working Solutions,” published by the Canadian Council on Rehabilitation and Work in Winnipeg.

THE LIMITS OF DUTY TO ACCOMMODATE
The law is clear that employers have a duty to accommodate employees with a physical or psychiatric disability, but are there limits to this obligation?

Yes. Legally, employers are only required to accommodate up to the point of “undue hardship.” An employer’s duty to accommodate can be limited by such factors as cost, co-worker safety, and job performance. An employer would not be expected to make accommodations that would threaten the company’s solvency. In Sherry Brooks’s case, the arbitrator considered the large size of Canada Post as an employer and decided that accommodation would be appropriate up to $10,000 or $12,000.

Most arbitration awards are extremely conservative in the way the cost component of “undue hardship” is interpreted. When employers are ordered to spend money to accommodate, it’s usually a nominal amount — much less than the cost of a weekend executive business trip.
Although employers may say otherwise, often there is no cost component — for example, when shifts or duties are simply rearranged.

In Vincent Chenard’s case, the arbitrator found that the safety risk of co-workers was an issue because it was likely that Chenard, at some point, would have another seizure. Changing chenard’s work duties solved the problem. If the employer’s operation had been small, this may
not have been an option.

Finally, if an employee has a disability that makes it impossible for him or her to perform most of the duties for which he or she is qualified, then the employer may have a way of escaping its duty to accommodate. This was not the case with Ken Strain. His restrictions were minor
compared to all the duties in which he had full capacity.

Employers used to fire anyone who was not living up to the employer’s expectations. Now it is the workplace that must adapt to accommodate employee needs. The possibilities are endless when a little imagination is applied.

Naysayers who view accommodation as favouritism or the advancement of a special interest group may see reason in a pragmatic analysis: Either the worker supports him or herself in a workplace equipped with modifications, or the worker is barred from the workplace and supported
by insurance plans or government assistance. The former makes the best economic sense.

Accommodation is about eliminating barriers that prevent people with disabilities from having productive work lives. It is also about creating a work environment that fosters fairness and human dignity.

(Rebecca Murdock is a Toronto-based labour lawyer. She can be reached at (416) 340-9070.)

 

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