In Giang v DBG Canada Limited [Giang], the Human Rights Tribunal of Ontario (“HRTO”) affirmed that an employer’s duty to accommodate includes the procedural duty to at least enquire about the employee’s restrictions or to assess the workplace if there is insufficient information to determine whether accommodation is appropriate.
Additionally, an employer cannot rely on after-the-fact evidence—particularly when the employee has already commenced legal proceedings—to support its decision not to accommodate the employee. Notably, this is the case even where the evidence is in favour of the employer.
In Giang, the applicant employee was a forklift driver with the respondent employer. Due to his heart condition, the employee had an implantable cardioverter-defibrillator (“ICD”) surgically inserted in his chest. He was cautioned by his physicians to avoid exposure to high voltage machinery, as the electromagnetic field paired with the ICD could cause him to have a cardiac arrest.
The employee returned to work after his surgery and believed that working around the press machines was risky due to his ICD. While the employer accommodated him for two years by allowing him to perform his work away from the press machines, the employer began to pressure him into working in the understaffed press area.
The employee refused to work in the press area due to concerns for his health, provided medical documentation for same, and requested continued accommodation. The employer indicated that the employee’s medical documentation was insufficient to support his request, and the employer continued to pressure him to work in the press area. The employee subsequently had a panic attack and took a medical leave due to the lack of accommodation.
Years later, the employee stated he was cleared to return to work, and he provided medical documentation outlining his inability to work in the press area. The employer provided the employee an ultimatum: return to work in all areas or be dismissed.
As the employee felt he could not return to work without accommodation, he was dismissed. The employee brought an application alleging discrimination to the HRTO in turn.
One year after the employee’s dismissal, the employer commissioned a third party to prepare a report to evaluate the electromagnetic fields in the workplace and its potential interference with an ICD. The report concluded the electromagnetic field measurements were well below the recommended exposure limits for an ICD, causing little to no risk of harm.
The HRTO held that the employer failed to accommodate the employee by not taking appropriate steps to address the employee’s restrictions until after the employee had already commenced legal proceedings.
As part of the employer’s procedural duty to accommodate, when the employer received the employee’s medical documentation, the employer should have taken steps to ensure it was safe for the employee to work in the press area. At a minimum, the employer could have either asked for more information or assessed the risk of the electromagnetic fields.
Even though the report had confirmed there was no risk to the employee and the employee could have worked in the press area without harm, the employer was not permitted to rely on this after-the-fact evidence. During the relevant period of the accommodation request, the employer denied the employee’s accommodation request without proper justification.
With respect to lost wages, the HRTO awarded the employee over $10,000.00, despite finding that the employee failed to make reasonable mitigation efforts. In doing so, the HRTO considered that the employee would have returned to work if the employer had met its accommodation obligations. The HRTO also awarded the employee another $20,000 as compensation for injury to dignity, feelings, and self-respect.
Takeaways for Employers
The Giang decision affirms that an employer’s duty to accommodate arises at the time of the employee’s request. The procedural duty to accommodate involves, at minimum, a further enquiry into the details underlying an employee’s accommodation request, or a workplace assessment to confirm whether accommodation is needed. Employers cannot rely on after-the-fact evidence to justify a decision not to accommodate an employee.
Upon receiving an accommodation request, employers must meet their procedural obligations by gathering sufficient information to ensure they appropriately decide whether to grant accommodation.
Employers should also remember they must accommodate their employees to the point of undue hardship. In the current pandemic climate, employers have been receiving more accommodation requests, which are often related to vaccine exemptions or mental health concerns. Regardless of whether an employer believes it can deny an accommodation request, employers should make sure to properly consult with their employees and to appropriately assess accommodation needs and options.
Even where an employee fails to mitigate, an employer may still be liable for some of the employee’s lost wages if the employee would have been able to work with the employer but for the employer’s failure to accommodate.