Thursday, 26 March 2015

Guidance on What an Employer Can Do When Accommodating a Disabled Employee

In dismissing a complaint of disability-related harassment and discrimination, the Canadian Human Rights Tribunal recently made some helpful comments on an employer's authority to follow-up with an employee respecting their medical condition and any restrictions they may have.

In Croteau v. Canadian National Railway, the Complainant was a conductor on freight trains operated by CN when he was injured.  Following multiple accidents and injuries over a ten-year period, the Complainant had a negative interaction with a Risk Management Officer (regarding his request for benefit forms), and two workplace accidents that resulted in injuries.  CN conducted a reconstruction of one of the accidents (as part of its root-cause analysis), and investigated whether the Complainant was legitimately off work following the second accident, which included hiring a private investigator to conduct surveillance.  Over the course of the succeeding months and years, the Complainant developed certain mental health issues, including anxiety and depression.  He claimed that the employer had engaged in several incidents of harassment, and that it had also repeatedly failed over a period of years to accommodate his disabilities. The employer denied the allegations and brought a non-suit motion, which was successful in having the Tribunal dismiss two alleged incidents of harassment.  However, another nine allegations of harassment and failure to accommodate were the subject of full evidence before the Tribunal.

At the outset of its analysis, the Tribunal made a couple of important observations.  First, it stated that not every interaction that a disabled employee has with the employer which is subjectively objectionable will amount to "harassment".  At para. 43, the Tribunal wrote:
It is important to recognize when dealing with allegations of “disability harassment” that it denotes more than just being uncomfortable or offended in the sometimes difficult, sensitive discussions between management and employees. For example, an employer has the right to manage its employees and issues relevant to the operation of its business, such as making, monitoring and enforcing rules in the workplace. The key is to examine whether the conduct has violated the dignity of the employee (e.g., as a result of belittling or degrading treatment by the employer linked to the ground of disability) from an objective perspective such that it has created a hostile or poisoned work environment.
Secondly, although the duty to accommodate does have a procedural aspect to it, that doesn't mean that a complainant is entitled to a remedy for a deficiency in the process unless it leads to a substantive failure to provide reasonable accommodation.  (The Tribunal based its view in this regard on the decision in Attorney General of Canada v. Cruden et al., which was recently upheld by the Federal Court of Appeal, as discussed here.) 

The Tribunal then weighed the credibility of the various witnesses, including the Complainant (whose evidence was found to often be unreliable, due to his skewed perspective on events), and determined that none of the alleged incidents were proven or amounted to harassment or discrimination.  Most importantly, the Tribunal found:
  • The Complainant may have found the RMO to be rude or overly assertive, but she did not harass the Complainant merely by asking whether his injury was personal or work-related;
  • Investigating the reasons for the Complainant's absenteeism did not amount to harassment, even where the employee was cautioned about the possible consequences of continued high levels of absence;
  • Asking the Complainant to recreate the circumstances of a work-related injury was a legitimate exercise, intended to avoid or reduce future incidents leading to injuries;
  • Questioning the bona fides of an injury, on its own, does not amount to harassment, particularly where the employer has legitimate doubts about an employee's account of how the injury occurred.  Likewise, an employer has a right to inquire into the reason that an employee has a much higher than average incidence of work-related injuries (as was the case with this Complainant);
  • Despite the fact that the federal Privacy Commissioner had taken issue with the employer's use of surveillance by a private investigator, the Tribunal found that the surveillance did not amount to harassment.  The employer had legitimate reasons to question the reason for the Complainant's extended absence without leave (including the submission of contradictory doctor's notes, and his failure to answer 58 calls from the employer), and the surveillance itself was conducted in a reasonable manner.
  • Conducting a meeting with the Complainant to discuss his absence and the outcome of the surveillance (which captured the Complainant playing soccer and basketball, despite an alleged knee injury) was a necessary adjunct to the employer's investigation, and was not harassment, despite the meeting running "inordinately long";
  • Rescinding approval for tuition reimbursement, due to the Complainant's injury record and period of AWOL, was a legitimate response (given CN had reason to believe the Complainant was not "promotable"), and did not constitute harassment;
  • Although the employer may have relied on some inaccurate information in deciding to deny the tuition reimbursement, it did not amount to discrimination as there was no evidence it was related to a prohibited ground;
  • Issuing a 'deferred' suspension, while the Complainant was off on STD and then LTD leave, did not amount to harassment, particularly where the Complainant never ended up serving the suspension.
The Tribunal then went on to consider the Complainant's claims that CN had failed to accommodate his disability over a number of years, and ultimately found that CN had accommodated the Complainant to the point of undue hardship.  The Tribunal was satisfied that the operation of a freight railway was a very safety-sensitive endeavour.  The Complainant's restrictions (related to his anxiety disorder) prevented him from working alone, being responsible for the safety of others, operating any moving equipment or working in a safety-sensitive/critical position, although over the course of years these limitations changed to include restrictions from certain shifts, as well.  The Complainant acknowledged that the employer had taken some measures to accommodate him between 2007 and 2013, but still claimed that the employer had not done enough (over the course of five (5) failed attempts to return him to work).  Ultimately, the employer was unable to find any positions for the Complainant within his restrictions, either in Sarnia (where he had worked) or elsewhere within the railway. The Tribunal found that the RTW efforts had foundered because the Complainant was unable to fully participate in the employer's efforts (due to his anxiety disorder and certain unreasonable demands he made) and was fixated on obtaining an apology and other redress (despite the employer not having done anything wrong) before he would cooperate in RTW efforts.  The Tribunal observed that there were aspects of the accommodation process that CN could improve, but that no accommodation, short of undue hardship was possible, and dismissed the complaint.

The decision reflects both the challenges of dealing with a claim for disability accommodation (which can be particularly onerous in the area of mental health issues), and the types of normal employer interactions with a disabled employee that will not amount to harassment or discrimination.  While employers often feel as if their "hands are tied", this case shows that an employer does still have the authority to manage the employment relationship, including reviewing the circumstances leading to an injury or absence, investigating and addressing employee conduct (such as when an employee is AWOL), and questioning the legitimacy of medical notes (where there is reason to do so).

Do you face challenges with accommodation?  Need assistance in navigating the RTW process?  Contact Lance Ceaser for expert advice.


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