Network - Spring 2011 - (Page 8)

O Legal Source Legal Precedents Clarify Accommodation Procedure By Stuart E. Rudner T he duty to accommodate disabilities continues to be a thorn in the side of HR managers across Canada. Most are at a loss when they are asked to respond to a request to accommodate an employee. And almost none realize that they can insist that the employee take part in the search for accommodation. Over the years since the duty to accommodate first came into force, it seemed as though our courts and tribunals, generally speaking, extended the duty far beyond what was initially intended. The situation got to the point where many employers were terrified of dealing with employees with disabilities in any matter that could be seen as unaccommodating. This fear may have reached its pinnacle in the aftermath of the trial court’s decision in Keays v. Honda Canada. As many will recall, that case involved an employee who suffered from chronic fatigue syndrome and was ultimately dismissed as a result of his refusal to meet with Honda’s doctors. One of the underlying facts of the case, and one of the apparent bases upon which the trial court judge awarded half a million dollars in punitive damages, was Honda’s insistence that Mr. Keays provide a doctor’s notice in order to justify his absences. The lower court decisions raised the inference that merely requiring doctors’ notes, when an individual was known to have a disability, constituted a failure to accommodate. Fortunately, the Supreme Court of Canada clarified the law in Keays v. Honda Canada. I was fortunate enough to be a part of the Supreme Court hearing in this matter, as our firm represented the Human Resources Professionals Association, a party which sought leave to intervene in the matter. Our request was granted, and I was permitted to make submissions regarding the issue referenced above, and specifically to submit that the mere requirement that employees provide doctors’ notes to justify absences, in and of itself, does not constitute a failure to accommodate. The Supreme Court agreed with our submission. Among other things, they noted the following: “…the need to monitor the absences of employees who are regularly absent from work is a bona fide work requirement in light of the very nature of the employment contract and responsibility of the employer for the management of its workforce.” [The disability program] allows for disability-related absences, a form of accommodation determined in consultation with doctors. The program requires that medical notes be provided to establish that absences are in fact related to the disability. There is no stereotyping or arbitrariness here. As a result of that decision, employers should be more comfortable addressing attendance issues, even in circumstances where the employee is known or believed to suffer from a disability. That said, an employer’s actions must be reasonable, made in NETWORK O Spring 2011 8 O

Table of Contents for the Digital Edition of Network - Spring 2011

Network - Spring 2011
HRIA President’s Message
Legal Precedents Clarify Accommodation Procedure
Thank You!
Accommodation: Have a Plan and Stick to It
Disability Management and Duty to Accommodate: The Need for Good Documentation
Accommodating Disability, Not Bad Behaviour
Common “Mistakes” In Accommodation and How to Avoid Them
Case Studies: Managing Workplace Back and Neck Injuries
Accommodating Addictions in the Workplace
Duty to Accommodate – Employee Responsibilities
The Separation of Church and Work
When to Cut Sick Staff Off
The HR Office
Index of Advertisers

Network - Spring 2011