It Takes Two to Tango: Employee Obligations and Workplace Accommodations
Workplace accommodation is a difficult process, often with no easy answers. Employers know they need to be proactive when assessing and implementing accommodation plans to ensure compliance with human rights legislation.
What is often forgotten is that housing is a two way streetand employees also have their own set of obligations which, if breached, can be fatal to a human rights complaint.
Employee obligations under the accommodation process include:
- Alert the employer to the existence of a disability and the need for accommodation.
- Provide sufficient medical evidence, allowing the employer to assess the limitations imposed by the disability and to propose a reasonable accommodation plan in response.
- Accept reasonable accommodation proposals made by the employer.
Above all, employees cannot expect perfect accommodation or insist on their preferred form of accommodation. Employees have a duty to accept an offer of accommodation made by the employer, provided that the employer’s offer is objectively reasonable. When an employee refuses a reasonable offer of accommodation, the employer has discharged its duty to accommodate.
the Saputo Foods Decision
Zupcic v Saputo Foods Limited2022 AHRC 13 is a recent example where an employee’s refusal to cooperate with the accommodation process resulted in the dismissal of a human rights complaint.
In this case, the complainant employee was diagnosed with a shoulder injury which affected her ability to perform certain duties associated with her position. All parties agreed that the injury amounted to a disability within the meaning of Alberta Human Rights Act.
In response, the respondent employer implemented an accommodation plan providing for the assignment of modified duties, based on the medical evidence available. On several occasions during the accommodation process, the grievor stated that the modified duties were problematic for one reason or another. The employer responded to these concerns each time, adjusting their duties accordingly.
Six months into the accommodation process, the employer provided the grievor with a formal return to work plan (the “Return to work plan“), intended to return the Complainant to her usual duties (with reasonable modifications in place). The Complainant was asked to agree to and sign the return to work plan, but she refused to do so. The Complainant also failed to provide up-to-date medical information.Shortly thereafter, the Employer terminated the Complainant’s employment, and the Complainant filed a human rights complaint against the Employer alleging discrimination based on physical disability (the “Complaint“).
Unsurprisingly, the Chairman of the Tribunal concluded that the Complainant’s disability was a postman in her dismissal since the complainant’s employment was terminated after she refused to sign the return to work plan. However, the Tribunal Chairperson went on to conclude that the return to work plan was reasonable given the available medical evidence and that the grievor had not cooperated with the implementation of the proposed accommodation.
The Complainant argued that the accommodations in the return to work plan exceeded her medical restrictions and were unreasonable, but the Tribunal Chairperson found that the evidence did not support the Complainant’s assertions in this regard. Instead, the Tribunal Chairperson found the return-to-work plan to be supported by the evidence, noting that it included mechanisms for reassessment if the grievor had issues with accommodated work.
The complaint was dismissed because the complainant did not participate in the accommodation process.
Lessons for employers
Workplace design is a highly factual exercise. Employers must be vigilant and proactive when it comes to assessing and implementing workplace accommodations
This case is a powerful reminder that when an employer offers objectively reasonable accommodation and the employee does not agree to the accommodation or refuses to participate in the process, the employer will not have breached its duty to accommodate.