Neglecting its duty to accommodate proves costly
Disability management has a new-agey ring to it. As a nascent discipline, it seems something of a foray into the abstract conjured by a business school or prestigious consultancy to spawn new springs of billable hours. But courtesy of a
recent Human Rights ruling, a Tim Horton’s franchisee will experience the palpable, real-world consequences of failing to manage disability. Or, more accurately, for failing to be seen as managing disability. As the Lord Chief Justice Hewart once famously said: “Justice must not only be done but must manifestly and undoubtedly be seen to be done.”
Valiquette v. Tim Horton’s
The facts of the case are simple. The respondent terminated the applicant’s employment when she was 61 years old, after she had been employed by the respondent as a storefront employee for over 18 years. The trouble began when the worker told her employer that there were several tasks she could no longer perform, including the high physical demands of the drive-thru “runner duties” during peak hours. In turn, her supervisor told the worker to get a doctor’s note. The family physician’s clinical note would subsequently state that the worker had right-knee severe osteoarthritis and indicated that a knee replacement was likely in her future. Following receipt of this note, at the end of her shift that day, the respondent terminated the applicant’s employment.
The dismayed worker sought recourse to the tune of $25,000 as an award for injury to dignity, feelings and self respect. The tribunal reciprocated by awarding her the full award plus an additional amount of $15,290 as compensation for lost wages and pre-judgment interest.
The verdict is in
In justifying its decision, the tribunal noted that employers bear the onus of demonstrating the considerations, assessments, and steps undertaken to
accommodate disabled employees up to the point of undue hardship. On the applicant’s own evidence and her physician’s note, there was no doubt that the applicant’s physical capabilities were quite restricted within the context of her job duties. However, the applicant testified that she could still run the front counter, clean tables, run machines (e.g. espresso machines), wash dishes and replenish supplies. The employer rejoined that there were, to the contrary, very few tasks she could do at the time of termination.
Despite attempts to disprove fitness for work and anecdotes of accommodation efforts, the tribunal remained unpersuaded. There was simply no proof that the employer obtained all readily available information about the applicant’s medical restrictions and took adequate steps to explore accommodation solutions. And because the respondent failed to produce evidence of conducting an appropriate assessment as part of its duty to accommodate, it was unable to establish that it could not provide
reasonable accommodation up to the point of undue hardship.
Key lessons for prudent employers
- The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, including information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work.
- The term “undue hardship” requires employers to seriously consider how complainants could be accommodated.
- A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken, constitutes a failure to satisfy the “procedural” duty to accommodate.
- The employer in this case failed to undertake any meaningful accommodation dialogue with the employee after receipt of a physician’s note and did not request further information or consider accommodation options.
- The employer’s immediate termination of the employee’s employment within a few hours of receiving the physician’s note suggests that they acted precipitously and did not adequately consider potential accommodation options.
- The employer failed to conduct an appropriate assessment as part of their duty to accommodate.
Bottom line
Far from frivolous, the function of disability management transcends mere disability. The management of disability is actually about risk management, cost management, and in this particular case, even public relations management. Because, just ask yourself, how many coffees and donuts will need to be served to recoup $40,000?
Blue Collar Consulting helps keep employers out of court and comfortably distant from human rights inquiries. Call us today for further information.
