Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com with Stuart Rudner Ask an Expert RUDNER MacDONALD TORONTO Canadian HR Reporter, a Thomson Reuters business 2016 2 | March 16, 2016 Answer: As is well-established, employers have a duty to accommodate the disability of an employee to the point of undue hard- ship, unless it can show that there is a bona fide occupational requirement that would prevent it from doing so. While privacy legislation, as well as human rights laws, re- strict the amount and type of medical infor- mation that an employer can require from the employee, it is well-established that the employer is entitled to understand the lim- itations upon the employee's ability to carry out her work-related duties. In other words, the employer is entitled to fully understand the need for accommodation so that it can assess the viability of providing accommo- dation, as well as the options for doing so. e accommodation process is intended to be a two-way dialogue between the employee and the employer (or a three-way dialogue that would include a union if one is present). Employees are not entitled to make a request for accommodation and then refuse to par- ticipate in the process. Sometimes, an employer will suspect that an employee's poor performance is caused by disability. Rather than engaging in disci- pline or performance management, it is of- ten appropriate to speak with the employee and, respectfully, inquire as to whether there are any extenuating circumstances that are impacting her performance. If the employee refuses to acknowledge a disability or need for accommodation, after being been given reasonable opportunity to do so, then the employer may be unable to consider any possible need for accommodation and, if circumstances warrant it, then the employer can proceed with dismissal. e dismissal could be for just cause in appropriate cir- cumstances, or can simply be on a without cause basis, in which case the employee would be entitled to notice of dismissal or pay in lieu thereof. It would be crucial for the employer to document all of its efforts to discuss any need for accommodation with the employee, and the employee's refusal to participate in the discussion. Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as employees on social media, independent contractors, creed as a human right, and employer policies. You can view the blog at www.employmentlawtoday.com. Addictions of every kind Question: Can any addiction – such as gambling, video games, etc. – affecting an employee's ability to do her job be considered a disability requiring accommodation before looking at dismissal? Answer: As set out in the answer to the first question, it is well-established that employers must accommodate disability to the point of undue hardship unless a bona fide occupational requirement would nulli- fy this obligation. Certain addictions, such as alcohol and drugs, have been recognized as legitimate disabilities which entitle the employee to the protection of human rights legislation. Whether or not a particular addiction is a true disability will be a question of fact. Re- cently, some employees have alleged that they were addicted to pornography in order to jus- tify surfing pornographic websites at work. So far, that has not been accepted by our courts. However, gambling is recognized at a societal level as a form of addiction, and others will be more readily accepted as time passes. Just like a "traditional" disability, every case where novel disabilities are alleged will have to be assessed based upon its own particular set of circumstances and medical documentation. In order to satisfy a court or tribunal that she is truly suffering from a disability, an employee will have to produce satisfactory medical evidence to that effect, which could be tested by medical scrutiny and, where appropriate, independent medi- cal examination. Stuart Rudner is a founding partner of Rud- ner MacDonald LLP, a Toronto-based em- ployment law firm. He is the author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a omson Reuters business. He can be reached at srudner@ rudnermacdonald.com. Employee's participation in accommodation process Question: If an employee refuses to participate in the accommodation process but clearly can't do her full duties, what process should the employer follow before it gives up and dismisses the employee? Employees will have to produce medical evidence to prove a disability Employees are not entitled to make a request for accommodation and then refuse to participate in the process.

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