Employee Health Issues – What’s Your Legal Duty to Accommodate?
A Globe and Mail reader recently asked me whether he had a legal or moral obligation to reveal to a potential employer that he had been diagnosed with blood cancer. Of course, the long and short answer to his question is – no. He is protected by both provincial and federal human rights legislation that prohibits discrimination on the basis of a disability – even if the illness requires time off for treatment or recovery, like cancer.
Image courtesy zeno60 at stock.xchng.
Investigating this question from an employer’s perspective, we found the Canadian legal system expects a much greater commitment from organizations to accommodate employees (and even potential employees) on health-related matters, than meets the eye. Recently, human rights damages in failure to accommodate court cases have been rapidly increasing.
So, we consulted three leading employment lawyers across Canada to get their tips on what HR and hiring managers need to be aware of when it comes to dealing with health-related matters among their workers. Specifically, we spoke to:
- Natalie MacDonald, founding partner of Toronto employment law firm, Rudner MacDonald LLP, and author of Extraordinary Damages in Employment Law
- Gregory Heywood, employment, labour and litigation lawyer at Vancouver’s Roper Greyell LLP
- Andy Nielsen, labour and employment lawyer at Pink Larkin LLP in Halifax
Here is what they advise:
The onus is on the employer to show the hiring decision was not tainted: “Be careful what you ask for in the interview process,” says Heywood. “Knowledge can be a double edged sword – if a candidate was not selected and the employer was aware of the disability, the hiring decision may attract a human rights complaint and the employer will have the onus of demonstrating that the hiring decision was not tainted with knowledge of the disability.”
Use caution when researching candidates via social media: MacDonald says that employers should be cautious when using social media websites to learn about candidates prior to an interview. It could be argued that the employer discriminated against the candidate based on what was in his or her social media profile.
Interviews should measure only job qualifications: “What matters in the application process, is whether the prospective employee has the skills and qualification for the job,” advises Nielsen. “Questions from an employer should be designed only to measure these qualifications.”
Heywood also says, “the absence of any knowledge of a disability in an adverse hiring decision would be much easier to defend before a Human Rights Tribunal.”
The employer has a duty to accommodate, to the point of undue hardship: MacDonald explains that if a prospective employee does relay a health-related matter during the job negotiation/acceptance process, “the onus for the employer at that stage is much higher; the employer would have a duty to accommodate the employee up to the point of undue hardship throughout the employment relationship.”
Nielson adds: “Reasonable accommodations to the position may include: installing physical accessibility devices or software or adjusting the position’s hours of work.”
Employers must act proactively. According to the Canadian Human Rights Act managers are obligated to act proactively and initiate action to determine if an accommodation is needed, even if the employee has not asked for it. It’s advisable to document such efforts for future reference.
Human rights damages can be significant. According to MacDonald, under human rights legislation, “a person who initiates a complaint may request a variety of remedies, including lost wages, and special damages for injury to dignity, feelings and self-respect, amongst others.” In the case of lost wages, MacDonald says “a complainant may claim for any potential lost wages from the date of the discriminatory act all the way up to the hearing of the matter.” Damages could be significant, so it’s important that employers be aware of their legal obligations.
The net takeaway? While it’s hard to take personal emotions out of coworker relationships within the business equation – the advice above is another reminder that we have to be careful not to react emotionally when making a hiring (or firing) decision. We must be mindful of our legal obligations as employers in Canada, we must educate executives at all levels of the organization, and when in doubt, we must err on the side of caution.