Written by Lewis Waring, LL.B., Editor, First Reference Inc.
In a recent Alberta ruling, an employer was found to have failed to accommodate an employee’s rare disability when it refused to accept a lesser known medical test. Instead of maintaining a flexible attitude, the employer arbitrarily decided to reject the employee’s medical evidence merely because the test violated its policy. As a result, the employer was found liable for disability discrimination under the Alberta Human Rights Act.
The employer was a public sector health services organization. The employee worked for the employer from 1992 in different positions until her dismissal in 2017.
During her employment, the employee was diagnosed with Chronic Inflammatory Response Syndrome (CIRS). This is a condition caused by sensitivity to certain environmental elements such as mold. As a result of her condition, the employee required testing to determine where she could work safely.
The employer refused to allow the testing in the workplace, as requested by the employee. The employer did not agree to other options proposed by the employee and the employee did not agree with the measures suggested by the employer. The employer terminated the employee’s employment stating that the employee was uncooperative in the accommodation process.
The first component in determining whether discrimination has taken place is whether a “prima facie” case has been made out by the employee. A prima facie case simply means that some discrimination has taken place, regardless of whether that discrimination is a violation of human rights legislation. To establish a “prima facie” case, an employee must show he or she:
(a) Had a characteristic protected from discrimination by human rights legislation;
(b) Experienced an adverse impact; and
(c) The protected characteristic was at least a factor in the adverse impact.
The employee alleged that the employer discriminated against her based on her physical disability. Physical disability is one of the prohibited grounds outlined in the Alberta Human Rights Act. The parties were in agreement that the employee had a physical disability during the time in question. Therefore, the first arm of the test was satisfied.
Regarding whether the employee “experienced an adverse impact” and whether the employee’s protected characteristic was a factor, the employer had argued that there was no discrimination and that its actions were reasonable and justifiable in the circumstances. The employer further argued that the employee was not co-operating in the search for ways to accommodate her.
Whether the respondent discharged their duty to accommodate the complainant to the point of undue hardship is a question requiring the application of a number of factors, including the following:
The conduct of the parties during the negotiation process;
- The nature of the request for accommodation provided by the complainant;
- The time the request was provided;
- The impact of the request on the operations of the respondent;
- The position of the respondent on the request;
- The availability of other options for accommodating the complainant; and
- The costs of the available options.
For her accommodation needs, the employee had requested the following from the employer:
- That she be allowed to conduct an ERMI or HERTSMI-2 test for the purpose of determining the buildings where she might be at risk;
- That the employer provide her with an alternative test to HERTSMI- 2 which could provide similar levels of accuracy;
- That she be allowed to work in a position where she could avoid chronic exposure to untested buildings;
- That she be set up for remote work through technology;
- That she be given a temporary role while the employer continued to search for a permanent position that would address her accommodation needs.
The employer did not grant any of the options.
Regarding the ERMI test, the employer denied the employee’s request for it, on the basis that its Workplace Health and Safety (WHS) department carried out an internal review of the ERMI test and determined that ERMI was not an “industry standard” test. For this reason, the employer could not use the test as part of its standard process and policies. The employer prioritized the need for standardization in the workplace and for all testing to be validated in all of the employer’s buildings. Instead of adopting a flexible attitude, the employer chose to deny the test so that it would not have to use different testing at different buildings.
By adopting a rigid and self-interested approach, the employer failed to accommodate the employee’s disability. A request for accommodation by employees with physical disability must be dealt with on a case-by-case basis. A request that might be reasonable in one situation may be unreasonable in another situation. The duty to accommodate mandates that an employer addresses each situation. It is not necessary to have a standard policy that can take care of all situations when it comes to the duty to accommodate an employee with a disability. In fact, even with a standard policy, the employer would still be required to review the duty to accommodate on a case-by-case basis.
Apart from the respondent’s stated need for standardization of their process and policies, the employer would have suffered no prejudice if it had allowed the test as requested. The employer provided no evidence to demonstrate that the safety of its other employees might be negatively impacted by the ERMI test. As a result, the employer failed to prove that its conduct was reasonable and justifiable in the circumstances.
Requests for accommodation come in a variety of forms. While employers may get used to dealing with requests of a similar nature, it is crucial that accommodation be approached with a flexible, case-by-case attitude. The duty to accommodate is, at its heart, a requirement that employers keep an open mind and do whatever is reasonably within their power to ensure that an employee with human rights needs can continue their employment without experiencing adverse consequences related to those needs, and to consult counsel when needed.