Disability Related Absenteeism – Your Employer Has a Duty To Accommodate You

disabiliity accommodation at workWhere an employee has a disability, which interferes with the performance of a job requirement, human rights legislation requires employers to accommodate the employee to the point of undue hardship. Accommodation refers to changing the workplace or the employee’s working conditions in a way that ensures the employee is not unfairly excluded or disciplined based on the disability and the employee is assessed on actual abilities, rather than stereotypical assumptions.

When Does Disability Accommodation Arise?

The accommodation of a disability arises where an employee is unable to perform a duty or adhere to a workplace rule because of a disability. Accommodation issues may also arise where an employee does not qualify for a workplace benefit due to a disability. While an employer may not pay an employee, who is unable to work, the employer may still be required to allow an employee to accrue non-monetary benefits that are accrued by other employees.

What Are Your Rights To Be Accommodated By Your Employer?

Sections 5 and 10(1) of the Ontario Human Rights Code (OHRC) provide that “every person has a right to equal treatment with respect to employment without …. discrimination because of disability”. 

An employee’s right to be accommodated is not without limits. Section 17 of the Ontario Human Rights Code (OHRC) states that the right to be free from discrimination is not infringed if the person with a disability is incapable of performing or fulfilling the essential duties or requirements of his or her employment.

As an employee with a disability, you have Human Rights protections which extend to physical and mental conditions that may affect your ability to work. The level of accommodation that an employee is entitled to is the same, whether it is a physical or mental disability. 

Can Your Employer Contract Out Of Its Disability Accommodation Obligations?

Disabled workers should know that your duty to be accommodated is triggered when your employer becomes aware that you are unable to meet a job requirement. Some employers find it convenient to hide under third parties such as insurance companies. The law does not permit the employer to rely unreasonably on a third party’s assessment such as with a disability insurance company’s assessment of the employee’s disability and the potential return to work. The duty to accommodate remains with the employer and discrimination charges may be brought against them if they do not accommodate.

How Long Does An Employer Have To Accommodate?

The case of  Hydro Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, clarifies that an employee can be terminated only where no foreseeable improvement to the attendance record can be achieved after all accommodation measures have been implemented. The courts have found that timelines are case specific, and inferences can be drawn from several factors. The below chart outlines how the courts have addressed different lengths of disability-related absences. 

Ontario Public Service Employees Union (Bartolotta) v Ontario (Children and Youth Services), 2015 CanLII 19329 (ON GSB) 25% above institutional average. More than 70 absences per year It was decided that excessive absenteeism over an extended period of time with proof that it will likely continue is enough for an employer to terminate an employee’s employment.
Duong v. Linamar Corp 2010 CarswellOnt 3663, 2010 ONSC 3159 4 years Employer is not required to employ the person indefinitely. Irrespective of whether there was disability coverage or not. 
Fraser v. UBS Global Asset Management, 2011 ONSC 5448 (CanLII) 3 and a half years Held sufficient to frustrate a contract and no wrongful termination. There was no updated medical prognosis or reasonable prospect for being able to return to work, the employee had taken no further steps to provide information to her employer to substantiate her illness, and that according to the insurer, she had not participated in or at least reported on her ongoing medical treatment.
Ciszkowksi v. Canac Kitchens, a division of Kohler Canada Co. [2015] O.J. No. 85) 2 and a half years Held that this did not frustrate a contract because the doctor’s reports did not clearly claim that he was permanently disabled. 
Naccarato v. Costco Wholesale Canada Ltd. 2010 ONSC 2651(Ont. S.C.J.) 5 years Court found that the employee was wrongfully terminated because the employer had the onus to prove a frustration of contract, rather than on the employee to provide medical evidence of a prognosis.
Antonacci v. Great Atlantic & Pacific Co. of Canada [1998] O.J. No. 876) Disability caused by workplace injury. Hours of work reduced, and employer terminated the contract. The court held that the employment contract was not frustrated due to Antonacci’s medical condition where the contract contemplated a lengthy period of absence by an injured employee and provided for sick leave.

Clearly, these cases tell us that the decisions on the length of absence from work that constitutes a valid reason for termination are case specific and employees have to be mindful of this.

What Happens If You Are Terminated For Disability Related Absenteeism?

As an employee, you need to know that the failure to accommodate your disability to the very point of undue hardship is an infringement of your human rights. Your employer may be required to pay you monetary damages or be subject to other remedial orders including reinstatement with back pay if you have been dismissed. 

If your employment is terminated while you are on disability leave, you should contact an employment lawyer at Monkhouse Law as soon as possible for advice.

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