Williams HR Law LLP

Return to Work Case Studies from the Front Lines – Case Study #4

August 4, 2020

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Accommodating Physical Disability: Navigating Obligations in the Post-Pandemic Workplace

As many businesses resume operations now that most of Ontario has entered Stage 3 of its reopening, many employers are facing challenges related to accommodating physical disability and illnesses in the workplace. Under the Human Rights Code [Code], Ontario employers are legally obligated to accommodate employees with disabilities to the point of undue hardship. However, Ontario employers are also required to take every precaution reasonable in the circumstances to ensure the safety of its workplace under Ontario’s Occupational Health and Safety Act [OHSA]. It is therefore essential that Ontario employers understand their legal obligations and the appropriate considerations when presented with a situation where an employee’s disability may need to be accommodated in the workplace.

In this fourth post of our blog series, Return to Work Case Studies from the Front Lines, we draw from our experiences working with employers “on the ground” to provide practical insights for organizations regarding physical disability accommodation. The following case study illustrates how obligations to accommodate physical disabilities can overlap with health and safety concerns related to COVID-19.

As usual, the case study is based on a real-world situation with which we recently assisted a client. The details of the scenario have been adapted and anonymized.

The Scenario:

  • Peter is an employee who does outdoor work for a landscaping company (the “Employer”) that requires him to travel to client sites as part of his position. The Employer temporarily closed its operations in March 2020 due to the outbreak of COVID-19 but began gradually increasing its landscaping operations in April 2020. During the outbreak, the employee advised the Employer that he had been hospitalized for reasons related to a respiratory illness.
  • In early July, Peter informed his manager, Jody, that he was ready to return to work as he was currently receiving benefits under the Canada Emergency Response Benefit (“CERB”), and wanted to return to work and receive his pre-COVID earnings.
  • Jody informed Peter of the Employer’s new health and safety policy (the “Policy”), which includes a requirement for employees to wear masks for most of their work duties, which involve working in teams of 3-4 workers and sometimes speaking with clients.
  • Peter told Jody that he cannot wear a mask due to his respiratory illness. He insisted to Jody that he wished to return to his previous position without having to follow the mask policy.
  • As a next step, Jody wanted to ask Peter about his specific respiratory diagnosis to understand whether it truly prevented him from wearing a mask. Before doing so, Jody reached out to us for advice.
  • After being apprised of the situation, we first advised Jody that an employer cannot ask an employee for a specific medical diagnosis, but is generally limited to inquiring about an employee’s work-related limitations caused by a medical condition and the employee’s prognosis for recovery. We recommended a strategy of reaching out to Peter’s doctor to obtain the necessary information about Peter’s medical limitations. Specifically, the letter asked Peter’s doctor whether it was safe for Peter to return to work given his existing respiratory condition and possible increased vulnerability to contracting COVID-19, and whether his condition prevented him from wearing a mask. The letter also included a job description so that Peter’s doctor understood the nature of Peter’s work.
  • Peter’s doctor provided a medical note confirming that Peter could return to work given the duties of his position, but that his respiratory condition prevented him from wearing a mask.
  • Given Peter’s inability to wear a mask, Jody wanted to refuse Peter’s return to work. However, we advised Jody that the Employer was obligated to explore and assess its work and operations to determine if there were any possible solutions that would allow the Employer to accommodate Peter’s inability to wear mask. We discussed with Jody whether there was any way in which Peter’s position or the work environment could be altered to minimize the risk of spreading COVID-19 while allowing Peter to work without a mask. Jody agreed that she would assess Peter’s role and the work environment to determine whether accommodation was possible.
  • After evaluation of Peter’s role and the Employer’s operations, Jody developed an alternative work plan that would allow Peter to perform his tasks without coming into close proximity to others. Under the work plan, Peter was required to work at least two metres away from other employees, and others, at all times. The Employer also assured that Peter worked with at least one employee who was capable of assuming client contact responsibilities so that Peter would not be required to come in close proximity to clients for management and transactional purpose at client sites.
  • Peter accepted the alternate work plan and was able to return to work without having to wear a mask.
How the Employer Met its Legal Obligations How the Employer Could Have Exposed Itself to Liability
  • Implemented and informed Peter about new workplace health and safety policies
  • Upon identifying a potential health and safety risk of returning Peter to work, the Employer sought medical information from Peter’s doctor to verify his medical limitations and accommodation needs
  • The Employer also sought medical information from Peter’s doctor to ensure it would be safe for Peter to return to work given his medical limitations and the threat of COVID-19
  • Applied the Policy and mandatory mask requirement in a flexible manner, and explored other available solutions to accommodate Peter’s inability to wear a mask at work
  • Sought legal advice before asking for the employee’s medical diagnosis or making decisions about allowing return to work
  • If Jody had asked Peter specific questions about his medical diagnosis, this would have resulted in the Employer requesting medical information that is more intrusive than necessary for its accommodation process, and potentially exposed the Employer to liability under the Code, or a breach of Peter’s privacy rights
  • If Jody had insisted on a strict application of the Policy, and refused to allow Peter to return to work after learning that he was unable to wear a mask without exploring other alternative arrangements, the Employer would have failed to meet its procedural duty to accommodate Peter’s disability

Key Considerations and Takeaways:

Under the Code, Ontario employers have a duty to accommodate employees whose ability to perform their work duties are affected or limited by a disability. While employers must obtain information about an employee’s medical limitations, employers cannot ask for information about an employee’s specific medical diagnosis, as this can potentially expose them to liability for discrimination under the Code, and result in the employer breaching an employee’s right to the privacy of that medical information.

In this case, although Peter was unable to wear a mask and could not comply with the Employer’s Policy, the Employer was still obligated to explore other potential options to accommodate his return to work short of undue hardship. In Peter’s case, the potential options included measures to distance Peter from colleagues and preventing close contact with clients. Exploring these alternatives is part of the Employer’s procedural duty to accommodate, which requires the Employer to consider alternative options where an employee is unable to assume their usual position or duties. Where possible, the procedural duty to accommodate may require an employer to apply a flexible approach to policies and regular workplace protocols. However, note that an employer is only required to accommodate an employee to the point of undue hardship, which is a high legal threshold to meet, but can generally be met in the event that the proposed accommodation would result in substantial costs to the employer or create a health and safety risk to the employee or others in the workplace.

This case also highlights the importance of obtaining medical documentation that confirms it is safe for an employee to return to work. In addition, where employers feel that they have insufficient or vague information from a doctor that does not clearly indicate that it is safe for an employee to return to work, the employer should follow-up with the doctor to obtain clear answers to questions that the employer requires to satisfy its accommodation and health and safety obligations.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.