Part IV. Examples of accommodation imposed by the courts

The need to adopt measures to facilitate an employee’s earliest possible return to his or her job, or another suitable one, must be assessed individually. The nature of the measures needed will vary from case to case. However, some situations merit special attention, having characteristics the employer and the union will have to consider in seeking whatever measures are appropriate. In this part, we shall review a few examples of accommodation imposed by the courts in relation to drug or alcohol dependence, psychological disability, pregnancy or marital situation.

4.1 Drug or alcohol dependence

Since drug or alcohol dependence is regarded as a disability within the meaning of the Canadian Human Rights Act, employers must seek to accommodate employees in order to help them keep their job. An employer must be attentive to its employees’ behaviour, since it has a duty to provide support even if an employee will not admit openly that the problem exists.⁷⁴ This is justified by the fact that denial is often one of the symptoms of the disease.⁷⁵ An employer with reason to believe that an employee has dependence problems is therefore obliged to let the employee know they have a problem and offer them an opportunity to correct it, before taking disciplinary action.⁷⁶ An employer may dismiss an employee who is frequently absent because of this kind of problem only if the employee has had sufficient time to take responsibility for it, but shows little likelihood of improvement.⁷⁷ Since the relapse rate after treatment is high, an employer will sometimes have to allow the employee a second or third course of treatment. Reinstatement after treatment may then be conditional on perfect attendance and mandatory drug or alcohol tests.⁷⁸ However, every situation must be considered individually. In this connection, note that a drug and alcohol testing policy calling for automatic termination after a second offence was found to be inconsistent with the duty to accommodate by the Canadian Human Rights Tribunal.⁷⁹

The employee has an obligation to cooperate in the improvement of his or her situation.⁸⁰ An employer may naturally take disciplinary action against an employee who refuses the assistance offered or shows insubordination by, for example, driving while impaired.

4.2 Psychological illnesses

A number of psychological conditions, such as depression or chronic anxiety, are considered a disability under Canadian human rights legislation.⁸¹ These are often the most difficult cases to manage, because the absences are lengthy, the date of return to work is difficult to predict, and those affected hesitate to talk about their problem or are unable to do so.⁸² An employee normally has a duty to indicate clearly to his or her employer what accommodation measures would facilitate a return to work. However, the situation is different when the employee has a mental disability, since the disability may make it impossible for him or her to assess the situation clearly.

When an employer observes abnormal behaviour in an employee, such as an emotionally fragile state, it has an obligation to at least investigate whether accommodation is needed in order for the employee to perform properly.⁸³ If so, the employer must approach the employee discreetly and in a non-confrontational manner to discuss the potential need for accommodation.⁸⁴ As appropriate, a union representative or other trusted person should be present.

The employer must therefore take the employee’s psychological state into consideration in making decisions affecting that employee.⁸⁵ For example, in Mager v. Louisiana-Pacific Canada Ltd,⁸⁶ the employer encouraged an employee with a history of severe depression to accept a lay-off after she requested leave to try to resolve her personal problems. The court found that the employer should have ensured that she understood all the consequences of being laid off. It should also have explained to her that she could also take sick leave and draw income-maintenance benefits under the program in place.

There are various myths and a stigma about mental illness. An employer must base decisions concerning an employee with mental illness on medical findings as to the employee’s fitness to work. If it fails to do so, it runs the risk that its decisions will be based on prejudice and stereotypes and will therefore be discriminatory.⁸⁷

There are cases in which the impact of an employee’s illness constitutes undue hardship for the employer, which will then have no choice but to terminate the employee. For example, an employer did not have to reinstate an employee as a boat handler after he damaged a boat following an anxiety attack, and the risk of relapse remained difficult to predict.⁸⁸

Accommodation required by a situation sometimes entails obligations both for the employee and for the employer. For example, reinstatement of an employee may be conditional on their taking medication, on regular medical checks, and on the obligation to disclose their condition to their colleagues, so that they will know what to do in an emergency.⁸⁹

4.3 Pregnancy

The Supreme Court has recognized that the financial and social cost of having children must not be borne solely by women, and that it is imperative to consider pregnant women’s needs in the workplace.⁹⁰ Women who are absent from work because of pregnancy must be able, insofar as possible, to return to their jobs and benefit from accommodation measures to prevent being limited in their employment or promotion opportunities when they go back to work.

The Tribunal des droits de la personne du Québec has described as follows the form such accommodation may take:

"[TRANSLATION] Temporary transfer to a safer job, part-time work, flexible hours, the right to refuse overtime, the possibility of taking time off and leave without pay are some of the arrangements employers might consider in the accommodation of women who are pregnant." ⁹¹

Accommodation may also involve extending maternity leave or making work arrangements to enable an employee to nurse her child.⁹² It may also include training upon her return to work to update her knowledge, so that her chances of promotion will be equivalent to those of her Co-workers.⁹³

Pregnant women can be especially vulnerable when they are term employees. Some employers may be tempted not to renew their contract because of pregnancy.⁹⁴ However, the policy of school boards in not granting contracts to employees who were not available from the beginning of their commitment because they were pregnant or on maternity leave has repeatedly been ruled illegal.⁹⁵ In their decisions, the courts found that there was discrimination, and that the employer had failed in its duty to accommodate its employee by offering her the position, since doing so did not impose undue hardship in such cases.

4.4 Family status

Discrimination based on family status has not led to many complaints to tribunals in Canada. Note that there is no decision in Canada concerning the obligation to care for an aged relative. This is surprising, given the aging of the population and the growing number of Canadian families living in households made up of three generations.⁹⁶

Case law seems to recognize the employer’s duty to accommodate parents obliged to care for their children when there is manifest incompatibility between family and occupational responsibilities. Such accommodation may include flexible or reduced hours, changes in work schedules, or leave.⁹⁷ However, the nature of appropriate accommodation and the respective responsibilities of the two parties have yet to be clearly defined.⁹⁸ The Ontario Human Rights Commission has a list of questions that Canadian courts have yet to address, which could have a huge impact on employers and employees:⁹⁹

"For example, is an employer required to provide paid or unpaid time off for a parent who needs to tend to the medical needs of a child or parent? Should employees who are required to take time off work to care for a sick parent or child be subject to attendance monitoring programs? Is an employer required to schedule shifts that are compatible with child care arrangements? May an employee refuse to travel where child care arrangements cannot be made, or travel would conflict with parental obligations? Is an employer required to permit full-time employees with children to adopt part-time or modified work schedules or take leaves of absence, and if so, under what circumstances?"

An obvious gap exists in this area. In this connection, note that the Ontario Human Rights Commission plans to address some of these issues soon in a statement of principles on discrimination based on family status.¹⁰⁰