On June 9, 2009, the British Columbia Human Rights Tribunal rendered its most recent decision Kerr v. Boehringer Ingelheim (Canada) (No. 4),1 addressing an employer’s obligation to accommodate disabled employees. Once again, the case demonstrates the difficult onus on an employer to show it has accommodated an employee to the point of undue hardship.

This is a very complicated area of law, as shown by the almost 200-page decision, and the fact that the hearing took 30 days over a two-year period. Ultimately, the Tribunal found against the employer on the basis that it had not properly accommodated the disabled employee.

The Facts

The employee, Linda Kerr, had been employed by Boehringer Ingelheim (Canada) Ltd. (the “Employer”) for 10 years when she was diagnosed with bi-lateral posterior subcapsular cataracts. At the time, she was told her vision would deteriorate and she would have very little or no sight within two years time. Immediately following her diagnosis her mother fell very ill, and the combination of her condition and her mother’s illness led her to resign. Rather than accept her resignation, the Employer encouraged her not to resign but to go on short-term disability which eventually led to an approved LTD claim.

After two years, when she no longer qualified for LTD, Ms. Kerr expressed interest in returning to work. One of the most significant criticisms the Tribunal directed at the Employer was the fact that it took so long for a return to work (RTW) plan to be put in place. Ms. Kerr originally had requested a return in 2002 and it was not until 2005 when a RTW plan was put in place. Interestingly, the RTW plan was completed only after Ms. Kerr filed her human rights complaint in 2005.

At issue in the case was whether there could be a finding of discrimination based on disability when Ms. Kerr had not been terminated and was still an employee at the time the hearing commenced. The Tribunal concluded that there had been discrimination since the Employer took so long and had so inadequately dealt with its duty to accommodate, in particular Ms. Kerr’s request for a RTW. In essence, the Tribunal found that the Employer’s longstanding failure to take steps to return Ms. Kerr to work adversely affected her and was discriminatory, and concluded that the Employer did not adequately accommodate Ms. Kerr.

A few practical points can been gleaned from the decision:

1. Accommodation must be done on a timely basis

Requests for additional medical information should not take place seven or eight months after the original request. If the medical information provided by the employee is inadequate, employees should be told, at the time, that further information is needed.

2. The accommodation process must be factually driven

In this case, the Tribunal carefully scrutinized documents such as Ms. Kerr’s letters enquiring about certain positions she believed she was able to fulfill, and the Employer’s explanations as to why it believed she was not qualified for these positions.

3. In some cases, requests for information may go beyond medical information but only if it is relevant to the specific condition that requires accommodation

In this case, Ms. Kerr was asked to undergo a driving assessment as the offered job would have required her to drive. The Tribunal concluded that the request was reasonable, but should have been done in a more timely manner.

4. Medical information that is not specifically related to the condition being accommodated should not be requested

In this case, the Employer asked for a physical assessment, including information regarding the employee’s ability to carry certain weight, that was completely unrelated to her eye condition. The Tribunal held such a request in those circumstances was “disrespectful”.

5. Accommodation should not be conducted through legal counsel using “without prejudice” correspondence

The Tribunal concluded that even though accommodation negotiations on a “without prejudice basis” were taking place between counsel, that did not alleviate the Employer’s duty to continue with the accommodation process. The Tribunal noted that in order to consider the accommodation that was being offered correspondence should be “with prejudice”.

6. Open and direct communication between the employee and the employer, without stereotyping, or assumptions, should be used during the accommodation process

“Accommodation exploration” is really the most important aspect of the accommodation process. This usually requires the employee and the employer to sit down, preferably face to face, to communicate their expectations, and discuss the employee’s ability to perform various aspects of the job or potential jobs.

In this case, the Tribunal concluded that the Employer had done a poor job determining whether other open positions would have been suitable for the employee in question. It held that the Employer was required to assess the employee’s qualifications and, if necessary, provide training for other positions since there was no evidence that doing so would cause undue hardship to the Employer.

The Tribunal ordered the Employer to pay two and half years worth of back wages from the date Ms. Kerr expressed interest in returning to work, to the date when she decided she would not return to the Employer. They also awarded her one of the highest awards in British Columbia for injury to dignity, feelings and self respect in the amount of $30,000. The Tribunal’s comments on this issue are enlightening:

Ms Kerr’s dignity and self-respect were clearly injured by the actions of BICL. The process of trying to return to work for her was a slow and deteriorating one. I accept Mr. Kerr’s assessment that Ms. Kerr went from a high performer to a person who had no value to her employer.

It is often easier to asses the injury to a complainant’s dignity, feeling and selfrespect when one is faced with a concrete action that results in the loss of one’s employment and the significant impact that it has on a person’s dignity. In this case, Ms. Kerr was not terminated. However, it was the failure of BICL, over a long period of time, to take steps to return Ms. Kerr towork that adversely affected her.

Whether an employer has been reasonable in accommodating a disabled employee continues to be a complicated issue. Of course, the most practical suggestion for employers faced with a similar situation is to seek legal advice, and treat each case uniquely on it own facts.