The number of employees claiming long-term disability or illness has increased significantly. In the U.S. alone, this number quadrupled between 1997 - 2007[1]. While most of these claims result from off-the-job causes such as accidents, disease or chronic illness, employers face serious challenges in accommodating employees who may or may not return to work.

The primary issues for employers are: a) what constitutes a disability; b) legal obligations to disabled employees; and c) how courts and human rights tribunals view claims by disabled employees who have been terminated.

What is a disability?

British Columbia human rights legislation does not define “disability”; the Human Rights Code simply prohibits discrimination on the grounds of physical or mental disability. Complainants to a human rights tribunal in this province must rely on the common law definitions of disability.

In Ontario and several other provinces, disability is defined as being caused by “bodily injury, birth defect or illness”. Clearly, it may be easier for people in these jurisdictions to establish a disability provided that it has a medical basis. If one has a “non-traditional” disability such as obesity, smoking addiction or drug addiction, however, it may be more difficult to establish a right and a remedy in the human rights context in these provinces.

A complainant to a BC human rights tribunal or court in a wrongful/constructive dismissal case must often first establish that they are in fact disabled. Relying on the common law, it will be quite easy to establish this if the disability has a basis in medicine, such as a diagnosis of cancer or multiple sclerosis. However, to establish that a condition such as obesity is a disability, one would have to look to the common law and the facts and medical opinions in each individual case. The Supreme Court of Canada determined in 2000 that obesity in some circumstances can constitute a disability. Recent decisions from human rights tribunals have also held that obesity may well be a disability. (Recall the recent decision that requires Air Canada to provide extra seats for obese passengers who notify them of their condition supported by a doctor’s note.)

The employee is found to be disabled. What’s next?

Obviously, an employee with an illness or disability cannot be discriminated against in the workplace. In the employment context, an employer has a duty to accommodate an employee’s disability or illness to the point of undue hardship. While the Supreme Court of Canada clarified that this is a very high duty, the employer is typically not required to fundamentally alter employment conditions. Rather, it must arrange duties in a manner that will enable an employee to perform their work (if at all possible). Employers are expected to offer such accommodations. The employee, and his or her medical professionals, must work with the employer to do this and to formulate a proper return-to-work plan if and when the disabled employee is capable of returning to the workplace. As we learned recently in Honda Canada Inc. v. Keays, the Supreme Court of Canada has held that a failure to accommodate a disabled employee and to act reasonably in offering such accommodation may well be the subject of punitive damage awards.

What if the employer fails to accommodate the disabled employee?

Firstly, there may be a potential human rights complaint based on such discrimination. As a result, the tribunal may award damages including those for damage to the employee’s dignity and lost wages.

Secondly, the employer may also face a wrongful/constructive dismissal claim in the courts. A claim for constructive dismissal is possible if an employer unilaterally changes a fundamental term or condition of the employee’s employment without providing adequate consideration or notice for that change. In failing to accommodate an employee’s disability an employer may be seen to have dismissed the employee. The employee may be entitled to claim to have been terminated and he or she may also claim for reasonable notice or pay in lieu of reasonable notice as a result (and perhaps punitive damages as well).

In answer to a claim that the employer has failed to accommodate an employee’s disability and that it has actually or constructively dismissed their employment, an employer may argue that the contract of employment has been frustrated. It has been found that an illness or disability that permanently impairs an employee’s ability to return to work does indeed frustrate a contract of employment and bring it to an end with no further obligations on the part of the employer. The idea behind this is that the employee’s circumstances have changed so radically that performance of the contract of employment is not possible or is at least no longer what the parties had contemplated or bargained for when the contract of employment was entered. Unfortunately for employers, the test as to whether a contract of employment has indeed been frustrated by the absence, disability or illness of the employee is factual. The court considers the following factors:

  1. The terms of the contract, including provisions for sick pay, leave or long term disability;
  2. The length of likely employment in the absence of any illness;
  3. The nature of the employment such that the employer cannot reasonably be expected to wait upon the return of the key employee as long as they may for other employees;
  4. The nature of the illness and the prognosis including the length of recovery if any, a permanent illness or a very lengthy illness may very well sever the contract sooner; and
  5. The length of employment to date, as longer term employees are often deserving of greater terms of absence.

How long must the employer must be expected to wait for the employee to return in the face of a disability or long term illness? Practically, a permanent disability or illness that cannot be accommodated in the workplace to the point of undue hardship will often frustrate the employment contract and bring it to an end. The case law on the issue however, has held that there is a very wide divergence in the length of an absence or an illness before the courts will consider the contract of employment to be frustrated.

The courts will also consider whether or not the parties have provided for long term disability benefits to the employee. The rationale is that if you have provided for long term disability in the employment contract, you have contemplated that there may be a long term absence from the workplace. The thorny issue of the impact of a disability or an illness on the employee’s future employment needs to be considered very carefully as well. Employers should seek advice with respect to accommodation before relying on a disability or a long term illness as frustrating the contract and terminating the employee accordingly.

In summary, what is or is not a disability in British Columbia is ever changing. If an employee is disabled with a long term illness or otherwise, an employer must meet a high standard in accommodating the employee in the workplace. Failure to accommodate may well result in significant damage awards and human rights complaints against the employer; caution must be exercised and proper advice must be sought at all times when dealing with these issues. Employers should be certain that they have acted appropriately and properly in all respects when dealing with any employee - particularly a disabled or ill employee - and an ounce of prevention is worth a pound of cure.