Employer response to ill, injured, or intoxicated employees: duty to accommodate.
Not so long ago, if an employee was injured on the job, or fell victim to an illness preventing him or her from performing parts of that job, the employer could summarily dismiss the employee. This practice relied on the reasoning that where an employee could no longer provide all services for which he or she was being paid, the employer was not receiving consideration for the salary it was paying. As one party to the contract was not meeting its obligations, the other side could terminate the agreement.
Direct v. Adverse Effect Discrimination
This attitude has undergone changes as a result of the growing application of human rights principles in the workplace. Most people today understand that an employer who discriminates against an employee based on his or her race, sex, religion, or even disability is engaging in improper discriminatory conduct. Discrimination on these grounds is known as direct discrimination, and is the principal form of discrimination which is proscribed by human rights laws across Canada. These statutes prohibit not only employers, but landlords and other service providers from refusing employment, accommodation, or services generally to people based on such immutable characteristics.
In the workplace, a more insidious form of discrimination occurs where an employer establishes a seemingly neutral workplace rule, which because of a disability or illness suffered by an employee, imposes obligations, penalties, or restrictive conditions not affecting able-bodied employees. Examples of this include rules requiring mandatory attendance during certain hours or days of work, or rules setting out hourly or daily production quotas. An employee suffering from an illness making attendance during those hours difficult, or under a disability making the quota impossible to meet, cannot comply with the rule, and may potentially be subject to sanction. Those situations would be examples of neutral workplace rules having an adverse effect against an employee because of an illness or disability.
Where adverse effect discrimination exists, employers are today required to modify their workplace rules to accommodate the ill or disabled employee, so that the employee can continue to work. The extent to which employers must go to meet their duty to accommodate is to the point of undue hardship.
Accommodation may take a number of forms, depending on the employee's illness or disability, as well as the size and resources of the employer. Generally speaking, accommodation involves adjusting the workplace to afford the disabled employee an opportunity to continue performing a job, on a level playing field with other employees. Whether the employee is entitled to continue working at his or her original position is one of the questions which remains an issue. That aside, accommodation may require the employer to accept some level of absenteeism, offer rehabilitation programs or reduced hours of work, or possibly even move employees to other jobs in the workforce.
The Duty to Accommodate and the Threshold of Undue Hardship
The duty to accommodate imposes a positive duty upon the employer to alter the workplace environment to provide the employee with an equal opportunity to perform a job for which he or she is otherwise qualified, to the point of undue hardship. However, there is no definite standard for deciding when this point has been reached; rather, it is a factual determination, based on the specific situation. The following criteria are relevant in determining if the undue hardship threshold has been reached:
* Financial cost to the employer
* Disruption of collective agreement
* Interchangeability of the employer's workforce
* The effect on other employee's morale
The duty to accommodate is neither limitless, nor one-sided. Both courts and human rights awards have acknowledged that the employee's right to be treated in a non-discriminatory fashion must be balanced against the employer's right to maintain a safe, economic and efficient workplace. This balancing has been codified through the use of the undue hardship test. Where an employer has demonstrated that it has made efforts to accommodate the employee to the point of undue hardship, and the employee remains unable to fulfill his or her duties, the employer will have met its obligation.
There also exists a duty upon employees, to be active participants in the accommodation process. Individual employees have been required to voice their comments or concerns regarding proposed forms of accommodation and to make suggestions about how they may be compensated for their disability. It is not open to an employee to reject every option presented by the employer, on the basis the suggestion does not meet the employee's ideal. The test is one of reasonable accommodation, not perfect accommodation, and therefore the employee must also be prepared to compromise.
Likewise in the unionized workplace, grievance arbitration boards have held that there is an expectation that union leaders will assist the employer in making accommodation decisions. This is particularly important in a collective agreement environment since accommodation of one employee's disability will usually have a spill-over effect upon the positions of other employees and their responsibilities. Where, however, the proposed accommodation by the employer will have too drastic an effect upon other members of the bargaining unit, the union is entitled to consider the concerns of its other members and reject the proposed approach. This places unions in a difficult position of having to weigh members' competing interests.
The Duty to Accommodate in Practice
Against this theoretical background, what are some of the situations in which employers may be required to accommodate an employee?
Perhaps the most surprising situation faced by employers occurs where they discover an employee has a drug or alcohol addiction affecting performance or attendance. Traditionally, these types of problems were considered self-induced, and therefore intoxication while at work was grounds for dismissal. More recent jurisprudence has accepted that alcohol and drug addiction are illnesses that must be treated just as any other type of ailment or occupational injury. Thus, a number of employers have been startled to discover that by choosing to dismiss an employee immediately, rather than offering some type of leave of absence to seek counselling, or employee assistance program to allow the employee to treat his or her condition, they have been found to have failed in their obligation to accommodate. However, where the employee works in a safety intensive environment, or whose misconduct may jeopardize other employees or employer property, no accommodation may be required. Employers in these situations have successfully argued that accommodation would cause them undue hardship because of the risks to third parties involved in a relapse.
In the unionized context, the duty to accommodate has resulted in many innovative approaches to deal with addiction issues. Perhaps the most common has been the introduction of the last chance agreements. These agreements, made between employer and employee, with union input and backing, allow the addicted employee to be reinstated to his or her position, subject to certain conditions. Usually in cases of addiction, these conditions include a probationary period during which time the employee may be subject to random drug or alcohol screening. Other conditions include compulsory attendance at group therapy or counselling sessions and disclosure of employee medical records to company physicians. What all these agreements have in common is that if an employee relapses, termination is generally automatic.
Through the mechanism of a last chance agreement, grievance arbitrators have attempted to balance the competing interests of the employer in operating a safe and efficient workplace, against the employee's right to receive treatment. Should the employee successfully complete the probationary period, the agreements often reward the employee by reinstating any lost or suspended seniority rights. This has the effect of making the employee whole again.
The primary area in which the duty to accommodate arises is where the employee has experienced an occupation-related injury or experiences a debilitating illness. This injury or condition may result in a permanent disability to the employee, which prevents him or her from fully carrying out the duties associated with the position previously held. Yet, but for the disability, the employee may remain perfectly qualified and competent to carry out the job tasks. Here, significant debate has arisen as to how far an employer must go to accommodate the employee's disability.
Essentially four different approaches to accommodation in this situation have been taken. They are set out below in order of least to most onerous obligation imposed on the employer:
* One category of cases has held that the only obligation upon an employer is to attempt to modify the grievor's existing job. There is no requirement that the employer offer other positions or take any further steps to ensure the employee may continue to work. If the existing job cannot be modified to assist the employee, for example through physical modifications to the work station, then the employment contract may be impossible to fulfill, justifying dismissal. Though many cases follow this approach, it is not the prevailing trend, and is seen as somewhat conservative. That being said, there may be cases where modifying the existing position is, because of the employer's particular circumstances, as far as the duty to accommodate may extend before the undue hardship threshold is reached.
* An alternative approach to accommodation states that the employer must not only modify the employee's existing job, but must also offer other existing positions within its workforce. Thus, where an employee can no longer perform his or her previous job, if another position in the employer's facility exists which the employee can perform, the employer is obliged to offer that position to the injured employee. This approach reflects the growing acknowledgment that employees and their unions are required to be active participants in this process. These parties too must evaluate which other positions in the employer's workforce may be available and suitable to the employee's disability and skills.
* The third category of potential accommodation measures requires the employer not only to consider alternative positions, but to modify those positions to accommodate the grievor as well. The first two approaches represent efforts by tribunals to accommodate a grievor's disability, while minimizing the impact on other members of the employer's workforce. Neither of these approaches to accommodation cause as significant workplace reorganization or upheaval as category three. Here the employer must evaluate other existing positions, and ask how might those positions be revised or altered to accommodate the injured employee. Naturally, such alterations will affect the jobs and job descriptions of other employees, having a ripple effect on their duties and obligations, and possibly a negative impact on them. This, in turn, may require a union to step in and balance the interests of its members. Despite these difficulties, it appears that a majority of awards today require the employer to make such an assessment and determine if such modification is feasible, before the undue hardship threshold will be viewed as being met.
* Finally, a line of cases which represents the most extreme form of accommodation requires the employer to create a position for the disabled employee. Some awards under this category have gone so far as to suggest employers should create a position by assembling previously unrelated tasks, all of which the employee is able to perform. Generally speaking, these cases have been viewed as overly ambitious, and represent a minority position.
There are unfortunately no hard and fast rules to the application of the duty to accommodate. This area of the law remains an area of considerable debate, as arbitrators and tribunals attempt to establish guidelines for what level of accommodation constitutes reasonable accommodation. Perhaps the only certainty is that because of the growing effectiveness of human rights legislation, where an employer is faced with a disabled, injured, or even addicted employee, its first impulse cannot be simply to dismiss that employee. Taking that approach is more than likely to result in a complaint to the Human Rights Commission or to a grievance arbitration board.
Garett Eisenbraun is a lawyer in the Labour and Employment Group with the firm of Field Atkinson Perraton in Edmonton, Alberta.
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|Author:||Eisenbraun, Garett A.|
|Date:||Oct 1, 1998|
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