By Lewis Waring, Paralegal and Student-at-Law, Editor, First Reference Inc.
Human rights claims are often the result of an employee’s claim that their employer has failed to accommodate their needs. Whether such claims arise due to an employee’s disability, family status, gender, religion or any other human rights ground, employees have a duty to accommodate the human rights needs of their employees. However, the duty to accommodate does not require employers to provide employees with their ideal option. Instead, employees are only required to provide reasonable accommodation.
In a recent British Columbian human rights case, an employer fulfilled its duty to accommodate despite the fact that it refused to provide its employee’s preferred option. By negotiating a solution that met its employee’s needs while respecting its own, the employer fulfilled its duty to accommodate and avoided liability under the British Columbia Human Rights Code.
In Tumber v FlexiForce Canada, 2020 BCHRT 132 (“Tumber”), the British Columbia Human Rights Tribunal (“CBHRT”) found an employee’s claim of discrimination to have no reasonable chance for success and dismissed it before it went to a full-blown hearing. The employee’s claim alleged that his employer failed to accommodate his physical disability because it delayed his return to work after a medical leave and interfered with his family caregiving obligations by moving him to another shift.
The employer in this case was a manufacturer of overhead door hardware and vinyl window frames. The employee, Sukhjinder Tumber, worked as a labourer in the Plastics Department. Workers employed by Flexiforce generally performed moderate to heavy manual labour, with the work in the Plastics Department being some of the lightest within the company.
The employee’s first and second leaves of absence
On November 6, 2017, the employee began a medical leave which ended on February 20, 2018, when the employee returned to work in accordance with a light-duty plan informed by recommendations from a physical therapist. Shortly after returning to work, the employee took extended leave for “medical reasons.” The employer maintained that the leave was for personal reasons and, on March 15, 2018, issued a record of employment that stated the reason of issuance as “compassionate care/family caregiver.” During the employee’s extended leave, the employer hired another worker for the afternoon shift to fill production demands.
After his extended leave, the employee returned to work and was assigned to the day shift instead of his regular afternoon shift. Despite having modified light duties, the employee claimed that his work was too demanding and wished to be returned to his afternoon shift. The employer refused to return the employee to the afternoon shift as doing so would require that it displace the worker it had hired.
The employee’s third leave of absence
On August 28, 2018, the employee took leave for a third time due to a shoulder and back injury. On December 11, 2018, he asked to return to work on light duties. The employer refused to accommodate his return to work because he had failed to provide them any information during his leave beyond a statement that he was “unable to work for medical reasons” and required him to undergo an Occupational Fitness Assessment to discover his accommodation needs.
After receiving the requested assessment, the employer refused to return the employee to work because the wintertime was especially slow and the employee had expressed concerns with even light duties. The employee’s issues with light work made the employer wary of re-employing him should he suffer from similar problems upon returning to work.
Negotiating the employee’s return to work
On January 16, 2019, the employee communicated to the employer that he had been cleared by his employer to return to work on graduated light duties, moderate duties and then regular duties. The employer responded that, in order to return to work, the employee needed to provide a medical note confirming that he could perform regular duties and would need to choose between working “(a) in the Plastics Department on dayshift; (b) in the Riveting Department on day shift; or (c) in the Bending Department either day or afternoon shift” (at para 21), with the work in the Plastics Department being the lightest.
The employee responded that he would like to work in the Plastics Department if he could work two days per week on afternoon shift to accommodate his orthodontic appointments for his braces and to attend doctor’s appointments for his parents. The employer refused to allow him to work two afternoon shifts because it expected that he could book appointments ahead of time outside working hours with some exceptions.
On January 21, 2019, the employee provided a doctor’s note recommending a return to work plan beginning with light duties which would progress to regular duties and, on January 28, 2019, the employee returned to work.
The BCHRT in Tumber found the employee had no reasonable prospect of success in claiming that the employer discriminated against him because of his disability and family status.
The employee had claimed that the employer discriminated due to his disability when it stated it would not allow him to return to work unless he could perform his regular duties. However, despite this statement, the employer then allowed the employee to return to work according to his doctor’s most recent graduated plan. As such, the employee’s claim that the employer refused to accommodate his disability was unrealistic. Furthermore, the fact that the employee had experienced significant issues performing even the lightest duties for the employer justified the employer’s requirement of a doctor’s note that confirmed the employee could return to regular duties.
The employee had also claimed that the employer discriminated against him by rejecting his request that he work in the Plastics Department with two afternoon shifts so that he could attend his parents’ medical appointments. However, the employer had offered three alternative options, one of which was work in the Bending Department which allowed him to work either the day or afternoon shift. This option accommodated his need to attend family appointments, but the employee had rejected it in favour of working in the Plastics Department, where the work was lighter.
Although the employer refused to allow the employee to work afternoon shifts in the Plastics Department, it did allow him to request shift changes on a case-by-case basis or to work hours outside of his regular shift to make up for lost time. Although working afternoon shifts would be more convenient for the employee, rescheduling shifts and working hours outside of his regular shift to accommodate employees did accommodate his need to accompany his parents to medical appointments.
In Tumber, Flexiforce had to strike a balance to accommodate an employee with disability and family status needs while respecting the rights of its other employees and the physical nature of its work. The accommodation it provided did not meet all of the employee’s needs perfectly. However, Flexiforce offered Mr. Tumber a number of options and modified his preferred option to meet his needs. By demonstrating flexibility and a willingness to negotiate a solution with the employee, Flexiforce fulfilled its duty to accommodate.
The duty to accommodate employees, whether they have needs connected to disability, family status, religion, gender or other human rights concerns, does not require employers to provide perfect accommodation. Instead, the duty to accommodate requires employers to provide reasonable accommodation, which allows them to take into account the needs of other employees and the nature of their business.
When confronted with employee requests for accommodations, employers should do their best to be flexible and try to craft a solution that meets its employee’s needs. However, employers are not required to accept an employee’s preferred solution. The duty to accommodate only requires employers to negotiate a reasonable solution. As such, employers should approach accommodation in good faith and try to address employees’ interests while respecting their own. While perfection is not always.