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?