The duty to accommodate is one of the most difficult issues employers regularly face. While courts across the country have attempted to define the scope of an employer's legal obligations with a workable degree of certainty, the practical application of the duty to accommodate remains complex and problematic. The issue is further clouded by novel fact patterns – leading to different statements of employer obligations. The most recent of these statements comes from the British Columbia Court of Appeal in Boehringer Ingelheim (Canada) Ltd./Ltée. v. Kerr.

The Facts

Ms. Kerr was hired by Boehringer in July 1996 as a pharmaceutical sales representative.  In November 1999, she was diagnosed with cataracts and advised that she would have little to no sight within two years.  Rather than resign from her employment in May 2000 as she had initially planned, Ms. Kerr took Boehringer's advice and instead applied for a disability leave. 

While she was initially approved for disability benefits, in September 2002 the insurer deemed her capable of working at some occupation and her benefits would be terminated.  Boehringer became aware of this information within a few days.  By November 2002, Boehringer was fully aware that Ms. Kerr wanted to return to work.

Ms. Kerr continued to seek an extension of her disability benefits from the carrier, and even enlisted a representative of the Canadian National Institute for the Blind to assist her in doing so.  In June 2004 her family physician indicated that she might be capable of returning to work. Again, Boehringer was aware of all this, but took no steps to return Ms. Kerr to work.  In response, she filed a human rights complaint in March 2005. 

It was not until July 2006 that Boehringer provided Ms. Kerr with a standard return-to-work plan.  However, it failed to consult with Ms. Kerr at all when developing the plan.  Ms. Kerr ultimately resigned from her employment with Boehringer on September 20, 2006 (during the hearing of her human rights complaint).

After a 28-day hearing, the British Columbia Human Rights Tribunal concluded that Boehringer had discriminated against Ms. Kerr on the basis of a physical disability and awarded her compensation from November 2003 (the date her disability benefits ended).  Boehringer's judicial review application of the Tribunal's decision was dismissed in March 2010, and Boehringer thereafter appealed to the British Columbia Court of Appeal.

The Court of Appeal's Decision

The sole issue for the Court of Appeal was determining the correct legal test for prima facie discrimination when an employee who has been on disability leave requests a return to work and the employer refuses to do so.  Boehringer argued that when such an employee requests a return work, a finding of prima facie discrimination cannot be made unless the employer is aware of a material change in the job, the employee's medical condition, or advances in technology that would enable the employee to perform the job.

In a unanimous decision, the Court of Appeal disagreed with Boehringer's argument and said that prima facie discrimination can be established without the employer being satisfied that there has been a material change in the circumstances affecting the disabled employee.  In the Court of Appeal's view, to say otherwise would allow an employer to refuse to return a disabled employee to work simply by assuming, without any objective evidence, that the employee could not do the work.

Implication for Employers?

Practically speaking, the Court of Appeal's decision means that when a disabled employee indicates a desire to return to work, employers have an obligation to seek clarification as to what work the employee is capable of doing.  Although a decision from British Columbia, it is bound to have impact in other provinces too.  Employers cannot remain willfully ignorant of a disabled employee's claim to be able to work.  On the contrary, employers should request and act upon any medical information provided by a disabled employee wishing to return to work.  As well, employers will be expected to involve disabled employee in any return-to-work plan that may be considered.

The law surrounding the duty to accommodate continues to evolve.  While we may not know what the future holds for this complex area of the law, it is fair to say that employers would be wise to take proactive steps to facilitate the return to work of those disabled employees wishing to do so.