Employee Refuses to Admit Any Disability – Employer Still Liable!
I am a firm believer that when an employer is aware that an employeee suffers from a physical or mental disability, it must take all steps to accommodate them to the point of undue hardship. It’s settled law and it’s the right thing to do morally. I have coached clients on countless occassions to ask questions about potential disabilities and not just ignore an employee’s potential issues just because they aren’t bringing them to the fore and not focus only on performance management or discipline.
However, what happens when you do ask all the questions and the employee denies having any disability or requiring any accommodation? In my personal opinion (and of many courts), when an employee refuses to acknowledge a disability or identify a needed accommodation, the employee is free to manage their performance like any other. After all, what other options does an employer have? They can’t force an employee to admit a disability or just give them special treatment because they suspect they may have a disability. I think that this would probably constitute discrimination on its own.
Unfortunately, an arbitrator in Hamilton Health Sciences Corp. v. ONA (Pinsonneault), 2013 CarswellOnt 17006, has concluded otherwise. In this decision, the grievor, a nurse was experiencing significant performance issues. The employer sought several times to understand the cause of the performance issues and specifically inquired about any potential substance abuse issues or other chemical dependencies. The grievor denied any substance abuse issue, stating that she was allergic to narcotics and only drank occassionally. The employer accepted her denial and terminated her employment due to the serious (and unquestioned) issues with her performance. Six months later, the grievor underwent a medical examination on her own which determined that she did suffer from a substance abuse problem. She grieved her termination.
The Arbitrator found in favour of the grievor and reinstated her, holding that “denial is often a sympton of addiction” and that because the employer had some suspicions it should have investigated further.
Personally, I don’t know what the employer could have done. I don’t think it would have been appropriate for them to “order” her to undergo a medical exam (or face termination). It seems to me that this could have been held to be an infringement on her privacy rights and otherwise inappropriate in the face of a clear denial. It seems to be the employer did all the right things and was still forced to reinstate an employee it had terminated, possibly requiring the displacement of a newly hired employee.
Is this right? Should employers be held liable for disabilities found after termination when they had investigated appropriately?
It is a tricky situation. Denial is a part of dealing with addiction and mental illness. This arbitration decision appears to differ from HRTO’s stance where it looks to what the employer knew or ought to have known to trigger liability.
Exactly my view Meghan. I also interpret the “know or ought to have known” to be reasonably met when the employer does their due diligence and asks the right questions.
I too am uncomfortable with this decision because it has the potential to put an unfair burden on employers to know something that an employee won’t admit.
But, in this case, since denial is explicitly a symptom of substance abuse, and the remedy–reinstatement–effectively puts everyone in the position they would have been in if the employee had admitted it at the first opportunity to do so, I don’t know that I would characterize it as a bad result for this set of circumstances.
Perhaps the issue is that the employee is not required to inform her employer that she has an addiction when asked – rather – the employee just has to provide evidence (presumably from her doctor or ‘treatment’ provider) that she has a disability and what sort of workplace accommodations she needs to deal with that disability. I don’t see why it would be ‘wrong’ or ‘discriminatory’ to request a medical/mental health assessment given the performance issues the employee was having. “Are you an addict?” is not the right question, that’s for sure.
The issue is a vexing one. The problem is upon whom to place responsibility for the problem. I would think that the prerequisite in such a situation is good faith as well as common sense. in the first place it does stretch credibility that the nurse did not realize she had a problem as this was a situation of some duration and her performance had been questioned. Surely she realized something was wrong and there must be some onus on her to participate in the process of determining the cause while she was working as a nurse and looking after the welfare of her patients and getting paid. Further the Employer after exercising good faith efforts to determine the cause of the program then presumably went through the effort and expense of hiring another nurse. What happens to this innocent as a result of the decision. She gets let go, presumably with severance of some sort and the employer is left with those costs, the costs of the grievance and the unresolved question of what to do next time. Unless some critical facts have been omitted I suggest a different Arbitrator.