Canadian Employment Law Today

January 22, 2014 CASE IN POINT: ACCOMMODATION Employer not at fault for failure to accommodate Employee promised to improve attendance but employer wasn't aware of the extent of employee's depression BACKGROUND ALL EMPLOYERS have a duty to accommodate employees or have an illness or disability. The duty to accommodate doesn't always mean the employee must be kept around, but it does mean an employer must investigate all of its options — such as modified job duties, a different job posting or shorter hours — to determine if it's possible to accommodate to the point of undue hardship. If it's not possible to accommodate the employee without causing undue hardship, or harm to the business, then the employer may not have to keep the employee around. However, an important part of investigating accommodation options is for the employer to have the information it needs to make such a determination. The employee has role in providing such information on her accommodation needs, particularly in letting the employer know accommodation is required in the first place. If the employer doesn't know the extent of the disability, it can't fulfil its duty to accommodate. | BY JEFFREY R. SMITH | A NOVA SCOTIA employer failed to properly investigate accommodation options before it terminated an employee due to excessive but innocent absenteeism, an arbitrator has ruled. The employee worked for the Cape Breton Regional Municipality in Nova Scotia doing payroll, accounts payable and rentals at an ice rink. For the first few years of employment with the municipality, she had no attendance issues at work. Her hours were somewhat flexible in that if she missed time she could make it up by working weekends or overtime. However, in 2004, the employee was diagnosed with cancer, which made it necessary for her to take time off work to have it treated. The illness required extensive treatment that took more than one year. There were extreme side effects which made the employee sick, and the drugs she took caused depression. The employee received long-term disability (LTD) benefits while she was treated for the illness for nearly two years. When the employee returned to work, she discovered her department had moved to a different arena with a different workplace regime that didn't have the flexibility of her previous workplace. Since the employee wasn't fully recovered from her medical ordeal, she was frequently exhausted and felt stressed in the new workplace. After several months back on the job, she began to suffer from depression. 4 Medication and side effects from illness caused depression In 2006, the employee suffered from another serious illness that required surgery. After the surgery, her depression worsened. In September 2006, a physician in the municipality's occupational health services division — who was responsible for determining the fitness of employees to return to work — noted the employee was depressed, had decreased energy, a lack of concentration and decreased interest as a result of her medication and treatment. He recognized that she had a "major depressive disorder" and should continue taking medication while seeing a psychologist with the aim of returning her to work. In March 2007, the municipality's physician and the psychologist felt it was in the employee's best interest to return to work on March 19, but in an "ease back" situation where she would start with part-time duties and gradually work her way back to full-time. The municipality was unaware of the nature of the employee's depression and followed the medical directions that related only to the employee's ability to perform in the workplace. There were no further instructions regarding limitations or the need for any accommodation. The employee resumed full-time duties in June 2007. Over the next four years, the employee continued to work full-time but often arrived late. In many cases, the employee called in to notify the municipality she would be late for various reasons — such as a flat tire or a toothache, for example. The manager of the rink kept a record of the absences and in none of them did the worker indicate the absence was due to fatigue or depression. Management was aware the employee was dealing with serious health issues and accommodated these absences based on medical information it received pertaining to the employee's needs without discussing the specific nature of the employee's illness. Concern about employee's absenteeism The manager spoke with the employee on several occasions about her absenteeism and stressed to her that it made things difficult when she wasn't at work on time. Whenever it happened, other payroll staff had to fill in and cover her duties, which caused "considerable hardship" in the workplace. Because the absences were sporadic and came with little notice, the municipality couldn't simply replace her as it would if she were off for some time. As a result, work would often pile up and not get taken care of in a timely manner and other workers became frustrated. Both the manager and the union vicepresident told the employee she needed to be punctual to avoid difficulties in the workplace. The employee replied that she thought she could handle things and she wouldn't miss time in the fu- Published by Canadian HR Reporter, a Thomson Reuters business 2014 Continued on page 5

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