Written by Lewis Waring, Paralegal, Student-at-Law (3rd year), Editor, First Reference Inc.
In Benson v Central Health Authority, an employer fulfilled its duty to accommodate despite the negotiated resignation of its employee with a disability. Although the employee’s disability made continued employment impossible, the employer’s reliance upon a well-crafted human rights policy allowed it to fulfill its duty regardless. The employer fulfilled its duty to accommodate ultimately by responding to its employee’s request for accommodation systematically and fairly.
The employer, in this case, is the central health care and community services organization in the second-largest health authority in Newfoundland and Labrador. The employee worked as the employer’s operating room and recovery room nurse. In 2013, the employee complained to the employer that it had discriminated against her in her employment. The employee had a disability that she claimed the employer had failed to accommodate.
The employee’s disability resulted from the high-stress, high-demand work areas she needed to occupy during work. That disability consisted of impairment in memory and concentration and a low-stress tolerance and was initially projected to last for eight to 12 weeks. These factors also led to risks for long-term impairments.
As a result of the employee’s disabilities, she was forced to excuse herself from the workplace for a while. Eventually, the employee’s healthcare provider approved of her gradual return to the workplace. As part of this return, the employee was required to pace herself by limiting responsibilities, being assigned regular and unchanging tasks, and avoiding on-call and emergency duties. However, less than two weeks after this projection, the employee’s healthcare provider advised that she could return to full-time employment as long as she was assigned a different position. While the employee was not prohibited from working as a nurse, her healthcare professional recommended she be transferred to another department.
The accommodation process
In response, the employer began to accommodate the employee’s needs. This process was informed by its policy documents, including one specifically dedicated to the accommodation process of non-work-related disability. Under this policy, the employer canvassed several options. These options included early retirement and a modified work schedule that incorporated restrictions on her duties. These restrictions included limitations on how much she could lift, where she could work and what tasks she could be responsible for.
These offers were followed by meetings with the employee’s union representative and management. These meetings included discussions of return-to-work plans and possible modifications to ensure success. Throughout this process, the employer’s human resources employee expressed hope that the parties could work together to facilitate a speedy return to work, essentially putting a deadline on the employee’s decision regarding preferred accommodations.
The employee regarded each offered plan as unacceptable. Her rejection of each accommodation plan required her to work 40 hours per week. The employer responded that it had no part-time positions available. After the employee submitted further medical documentation justifying her need to reduce responsibilities, the employer reiterated its offered positions had taken into account her accommodation needs and confirmed that these positions remained available for acceptance.
However, the employee maintained the inappropriateness of these offers and, after submitting further medical documentation, decided to resign her position with an agreed advancement of $10,000 from her severance. Soon after, the employee filed a grievance alleging a failure of the employer to fulfill their duty to accommodate.
The communication issues between the parties
In this case, the employer’s failure to establish consistent and effective communication with the employee was harmful. These communication problems involved a misunderstanding of how the employee was to return to work. While the employee believed that she would perform familiar tasks and work for no more than 20 hours each week, the employer thought she would be working 20 hours a week or more.
This misunderstanding inevitably led to conflicts. Regardless of the amount of time the employee worked each week during her return, one party necessarily felt that their broken arrangement was not being respected. For instance, the employer’s goal was to get the employee back to work, monitor her progress, and make modifications as required. The employer’s policy informed this approach on the accommodation process for non-work-related disability. As a result of the employer’s goal to accommodate the employee’s return to work, the employer displayed a constant willingness to engage in discussions with the employee and her healthcare providers. The employer sought to meet the employee’s needs while also meeting her employment duties either in her own position or alternate.
On the other hand, the employee resisted attempts by the employer to find a suitable position for her to undertake. Specifically, the employee had refused to undergo a functional capacity evaluation to determine which of the three offered positions might suit her limitations. Although there were financial and psychological justifications for the employee’s reluctance, this resistance made it very difficult for the employer to fulfill its duty to accommodate her.
The importance of policy
One important takeaway from Benson is the importance of developing and relying upon a clearly written policy when responding to employment disputes. In this instance, the employer’s policy provided a roadmap it could follow as it navigated a contentious issue that could have easily led to significant liability. Furthermore, the employee in this case undoubtedly had a legitimate issue requiring accommodation. In such a case, the employer’s foresight to create a path for dealing with such needs allowed it to navigate complicated issues confidently. Ultimately, the employer’s successful planning and execution of its accommodation policy demonstrate that such tools pay long-term dividends. These benefits tend to outweigh the initial investments they require. As a result, employers are encouraged to put in the time, effort and financial resources needed to ensure they have comprehensive policies that respond specifically to human rights issues. Such steps hold the potential to permit employers to operate with clarity and certainty while navigating the waters of inevitable business disputes.
Human rights policies should take a systematic approach to address accommodation requests. This approach is required under human rights legislation since employers have a duty to provide substantive accommodation to ensure that specific procedures are followed in responding to accommodation requests. The need to pursue such procedures makes the designing and implementing of an effective policy crucial to fulfilling the duty to accommodate. This case demonstrates the power of compliance with human rights obligations and thus speaks to the importance of developing guidelines.