Duty to Accommodate Does Not Include Allowing Employee to Send Customers Away

There is a lot of confusion with respect to what measures an employer must take in order to accommodate an employee with a disability.  While employers must be prepared to make modifications to an employee's duties, such as adjusting hours of work, providing modified duties during periods of recovery, tolerating some absenteeism or waiving workplace rules that have a discriminatory effect, it is often difficult to assess whether an employee is able to perform the "essential duties" of the job, even with these accommodations.  A recent decision of the Human Rights Tribunal of Ontario (the "HRTO") illustrates where a request for accommodation goes too far.

In Pourasadi v. Bentley Leathers Inc., the Applicant was a store manager at the store, which sells luggage, hand bags, wallets and similar merchandise. As a store manager, the Applicant was required to work alone in the store for almost 50% of her weekly hours of work.  The rest of the time (late afternoons/evenings and Saturdays), one or more staff members were also present to assist customers. Although a manager, the Applicant was required to spend most of her workday doing customer service or merchandising and maintaining the store.  The Applicant injured her right wrist, unpacking a box, and subsequently developed issues with both arms (due to overcompensation for the original injury). For over a year, the employer accommodated the Applicant's restrictions, until she went off for surgery on her right arm.  She subsequently returned to work, but continued to have restrictions that prevented her from performing all aspects of the store manager job while alone in the store.  For a period of time, the employer scheduled an additional employee to perform the more physical duties in the store, but after a time the WSIB determined that the store manager job was not suitable for the Applicant, bringing this arrangement to an end.  When the employer determined that it could no longer accommodate the Applicant, she commenced an Application under the Human Rights Code, alleging that the employer had discriminated against her on the basis of disability by failing to accommodate her needs.

 At the HRTO, the scope of the duty to accommodate was raised as a preliminary issue.  The Applicant claimed that as part of its duty, the employer should permit her to defer tasks (such as merchandising and housekeeping) to other staff in the store, and that she should be allowed to ask customers to come back to the store at another time (when another employee was present) if the customer required assistance that was outside her restrictions.  The employer argued that these measures amounted to stripping away the essential duties of the job, and exceeded the employer's duty to accommodate.

After hearing the parties' argument, the HRTO rejected the Applicant's submissions.  With respect to the argument that the Applicant should be deemed capable of performing the essential duty of customer service by assisting customers "most of the time", the Tribunal found (at para. 31):

... In my view, based on the agreed upon facts, assisting customers constitutes over two thirds of the duties of the Store Manager position. As well, according to the agreed upon facts, Store Managers typically are assigned to work alone 19.5 hours per week. Based on these facts, I find that it is an essential duty of the Store Manager position to assist customers. In my view, the proper way of framing the essential duty relevant to this case is that it is an essential duty to "assist customers", not to assist customers "most of the time". In my view, if a duty is essential, it is a duty that is required to be performed whenever there is a need to perform it.

Given that being able to assist every customer was an essential duty, the proposed accommodation amounted to 'exempting' the Applicant from performing that essential duty.  The employer's duty to accommodate did not extend that far.  Based on its finding that the accommodation proposed by the Applicant did not fall within the employer's duty to accommodate, the HRTO did not make any findings regarding the argument that the Applicant should also be permitted to defer tasks to other staff.

The case is a good reminder of the limits on the duty to accommodate.  Whenever accommodation may be required, it is imperative for the employer to establish which duties are "essential" to the performance of the job before considering what measures or modifications could be put in place. If accommodation would involve removing the essential duties of the job, or exempting the employee from performing those functions (whether occasionally or all the time), the employer may not be in a position of accommodating the employee's needs without incurring undue hardship.  That is not to say that the employer may not have to consider other strategies, such as identifying other comparable, available roles that fall within the employee's restrictions and for which they are qualified.

Do you have questions about the duty to accommodate?  Need guidance on how best to provide modified duties in accordance with the Human Rights Code?  Contact Lance Ceaser for advice.



 

Trying to Stop Shoplifter While on a Break Not "In the Course of Employment": WSIAT

In a recent decision, the Workplace Safety and Insurance Appeals Tribunal ("WSIAT" or the "Tribunal") has ruled that an employee of a supermarket can sue her employer and a third-party for injuries she incurred when she was run over in the parking lot by a suspected shoplifter.  The employee was on a break at the time that she became involved in trying to apprehend the shoplifter. In its decision, WSIAT determined that neither the employee nor the personal defendant (the grocery manager) were "in the course of employment" when the employee was injured, and that she was not therefore precluded from pursuing a civil claim.

In Guizzo v. Metro Ontario Inc., the Tribunal initially focused on whether it could be said that the grocery manager (Mr. Hughes, a defendant in the action by cross-claim) was in the course of employment, taking into consideration the factors of time, place and activity. At the point when Mr. Hughes pursued the suspected shoplifter, he had completed his shift.  The pursuit led to a shared parking lot that was not part of the employer's premises, and the employer had a violence prevention policy that prohibited employees from trying to apprehend thieves. Pursuing shoplifters was not part of the defendant's job, in any event.

Likewise, the Tribunal found that Ms. Guizzo was on a break, and the employer had an expectation that she would be available to be called back to work if needed.  She had varied from her usual routine of spending her breaks near the exit door of the store.  The employer did not expect the employee (a cashier) to attempt to stop a suspected shoplifter, and such activity was expressly prohibited by the violence prevention policy.  Ms. Guizzo's injuries were incurred in the parking lot, which was not part of the employer's premises.

Under the WSIB's policies (OPM Document No. 15-02-02, "Accident in the Course of Employment"), an accident is deemed to be work-related where "the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment" (emphasis added).  However, OPM Document No. 15-03-04 specifies that "[w]orkers are not in the course of employment in public parking areas not under the employer’s control".  Moreover, where an employee is doing something that is outside their duties, or that he or she was not reasonably expected to do, this will generally take an employee outside the course of employment (OPM Document No. 15-03-08).  In addition to Board policy, the Tribunal also considered a list of factors that had been determined to be relevant in previous decisions:

1. Whether the employer derived a benefit from the activity performed by the worker.

2. Whether the worker was paid by the employer for the activity.

3. Whether the accident occurred while the worker was using equipment or materials supplied by the employer.

4. Whether the risk to which the employee was exposed was the same as the risk to which he would normally be exposed in the course of his employment.

5. Whether the activity was a result of instructions received by the employer.

6. Whether the accident occurred during the worker's normal working hours or overtime hours.

7. Whether the activity was reasonably incidental to the worker's normal employment duties.

In reviewing these factors, the Tribunal concluded that neither employee was doing something from which the employer derived a benefit, and that the time and place of the accident suggested that neither was performing their duties or an activity "reasonably incidental" to those duties when the accident occurred.

Despite the obvious connection with the workplace, the Tribunal concluded that neither Ms. Guizzo nor Mr. Hughes were "in the course of employment" when Ms. Guizzo was injured.  Because of this finding, the WSIAT concluded that section 28 of the Workplace Safety and Insurance Act did not remove Ms. Guizzo's right to sue for her injuries.

For employers, the moral of the story is that despite WSIB coverage, there will still be instances in which an employee's injuries may not be covered by the statutory regime.  Where employees are engaged in activities that take them outside the normal course of their duties (even where the employer has a policy prohibiting such behaviour), an employee may still retain a right to bring a civil action naming the employer.  It must be remembered, however, that this decision does not determine fault with respect to the employee's injuries.  It remains open to the defendants to argue contributory negligence on the part of the plaintiff, relying on the employer's violence prevention policy.

Do you have questions about what it means to be "in the course of employment"?  Need guidance on a WSIB claim or civil action by an employee?  Contact Lance Ceaser for expert advice.





 
 

Stronger Workplaces for a Stronger Economy Act reintroduced

In March, Ceaser Work Counsel reported on the second reading of the Stronger Workplaces for a Stronger Economy Act, 2013.  The legislation died on the order paper when the provincial election was called, but on July 16, 2014, the Liberal government reintroduced the bill (former Bill 146).  Here's a summary of the key amendments that (current) Bill 18 would make:

Stronger Workplaces for a Stronger Economy Act, 2014 (Bill 18)

The Stronger Workplaces for a Stronger Economy Act, 2014 (Bill 18) would make substantial changes to a number of employment-related statutes.

·         The Act extends protection to live-in caregivers under the Employment Protection for Foreign Nationals Act.

 

·         It extends the definition of “worker” under the Occupational Health and Safety Act (the “OHSA”) to include those who perform work for no pay, such as ‘unpaid interns’.  All of the protections afforded by the OHSA, including the right to refuse unsafe work, now apply to unpaid workers.

·         The Act reduces the “open period” under the Labour Relations Act, permitting decertification applications or union “raids” to occur within only the final two (2) months of construction industry collective agreements (instead of the current 3- month window). 

·         The Workplace Safety and Insurance Act (the “WSIA”) would be amended to attribute the costs of workplace injuries to temporary agency workers to the “client” employer, rather than the agency.  Lost wages for temporary agency workers would be assessed on the basis of their income earned from the agency.

Most significant, however, are the changes the legislation would make to the Employment Standards Act (the “ESA”). 

First, it would extend the time limit for recovery of unpaid wages to two (2) years, instead of the current 6-month limit.  The cap on recovery of wages of $10,000 would be eliminated, meaning that employers could be liable to the full amount of unpaid wages over a 2-year period.

Second, the amendments would create new responsibilities for temporary help agencies and the employers who utilize their services.  Agencies will now be responsible for tracking and maintaining records of all hours worked by agency workers for a period of three (3) years.  More importantly, the revisions to the ESA introduce “joint and several liability” for both the agency and the client employer with respect to the payment of wages.  This means that if the agency does not satisfy a claim for wages filed by a temporary worker, the client employer may be held responsible for any shortfall.

Third, the ESA is amended to create informational obligations for employers and the concept of the “self-audit”.  Employers would be required to provide all employees with a poster prepared by the Ministry of Labour setting out employee entitlements under the Act.  Employment Standards Officers (“ESOs”) are also now empowered to order an employer to conduct a self-audit of its records in order to determine whether it is compliant with the Act, and to provide the ESO with a report of its findings.  In its self-audit report, the employer must explain how it has determined that it is in compliance.

It should be observed that the amendments appear to focus on two vulnerable groups of workers:  temporary agency workers (so-called “temps”) and unpaid interns.  With respect to the former group, employers who rely on contingent labour will want to carefully review their contracts with the help agencies to ensure that the obligation to pay wages or other costs of the placement remain the responsibility of the agency.  Provisions that address responsibility for taxes and other statutory amounts will need to be reviewed and revised to ensure that the agency can be charged back for any amounts found due and owing by regulatory bodies, including any WSIB claims costs that are attributed to the “client” employer under the amendments to the WSIA.

By adding unpaid workers to the definition of “worker” in the OHSA, it appears that the Government is responding (at least in part) to claims that unpaid interns are becoming much more common and are prone to exploitation.  It may also be that the new “self-audit” mechanism in the ESA is intended to provide another enforcement tool to address those employers who inappropriately utilize unpaid interns, although the Government has not expressly called out this intention.

Do you have questions about Ontario's labour and employment statutes?  Have concerns about compliance?  Contact Lance Ceaser for assistance.

 

WSIAT Strikes Down Exclusion of Non-Traumatic Stress Claims Based on Charter Violation

In an April 29, 2014 decision, running to 79 pages long, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) heard a constitutional challenge of subsections 13(4) and (5) of the Workplace Safety and Insurance Act.  Under those provisions, employees can only claim compensation for mental stress if it arises as “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment”.  The claimant was a nurse who claimed that she had suffered from a mental disability following years of abusive and humiliating behaviour by a doctor at the hospital where she worked.  By virtue of the exclusionary language (and the Workplace Safety and Insurance Board’s Policy 15-03-02 (“Traumatic Mental Stress”), her claim was dismissed.  As a result, the employee brought a challenge under the Canadian Charter of Rights and Freedoms (the “Charter”) on the basis that the legislation discriminated against her, contrary to section 15, and that this limitation on her right to equal treatment could not be justified.

After an extensive review of the evidence from two experts on the causative relationship between workplace stress and mental illness, the WSIAT Panel concluded that the claimant had established that there was a moderate association between workplace stressors and forms of illness, such as depression and adjustment disorder.  Moreover, the Panel accepted that individuals with mental illness brought on by longer-term stressors (such as a pattern of workplace bullying) did experience substantive discrimination in being excluded from coverage.  While individuals with physical injuries that arose due to prolonged exposure or gradual onset were protected from income loss, individuals with mental disabilities did not receive the same treatment.  The Panel also rejected the argument on behalf of the Attorney-General that these types of claims were excluded due to the virtual impossibility of being able to establish that they were caused or significantly contributed to by workplace issues. The Panel observed that establishing a causal link between work activities and other physical ailments can be equally challenging, but that this is no reason to exclude coverage.

In short, the Panel found that the denial of equal treatment for claimants with non-traumatic stress conditions was contrary to the Charter, as it relied on or supported stereotypes of persons with mental disabilities, and that the Attorney-General had not established that it was a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”.   As a result, Tribunal declining to apply subsections 13(4) and (5) of the Act, or the Traumatic Mental Stress Policy.  Given that the Panel had previously held that the claim would succeed, but for those provisions and the Policy, the Tribunal upheld the appeal and the claimant was granted entitlement to benefits.

As was argued by the Attorney-General at the hearing of this matter, there is fear that permitting WSIB claims of this nature will “open the floodgates”.  However, it is too early to tell.  It should be acknowledged that prior to 1997 these provisions were not in the Act, and it does not appear that mental stress claims threatened the financial viability of WSIB at that time.  It is also quite possible that the Government will take this matter to court on judicial review.  Even so, the courts tend to show great deference to the Board and the Tribunal due to their special expertise.  Stay tuned for any further developments …

Do you have a WSIB issue or need general advice on the Act?  Feel free to contact Lance Ceaser at Ceaser Work Counsel for cost-effective, expert guidance.