A recent decision of the Human Rights Tribunal of Ontario (HRTO) reminds employers that they must act very carefully when approaching the termination of a disabled employee.

In Campbell v. Revera Retirement LP the employer terminated a Health Care Aide.  The employee’s job had involved looking after elderly residents, which included bathing, feeding, dressing, toileting and transporting them from one location to another by wheelchair. She was diagnosed with a condition that caused ongoing discomfort and swelling, thickening and discoloration of the skin on her legs. The disease was painful and was likely aggravated by prolonged standing or extensive walking.

In early 2009 the employee went off work for a number of months. The parties explored possibilities as to modified duties to which the employee could return and in mid-2009 the employer offered a position in its laundry facility.

The employee maintained that the position exceeded her functional limitations, even with modifications as proposed by the employer, and she was supported in this by her family doctor. The employer adopted the position that the employee could do the job with the modifications proposed and proceeded to terminate the employee when she failed to assume the position in the laundry facility. In doing so, the employer did not seek further clarification from the employee’s doctor or a second opinion from another physician.

The HRTO accepted that the employer had exhaustively canvassed all positions available in the workplace in which the employee might have returned to work. The HRTO also concluded that the employer had no position which the applicant could perform even with accommodation.

However, it found that the termination was discriminatory, in the following terms:

[57] The reason the applicant did not take on the laundry aide job was for reasons related to her disability; specifically because her doctor confirmed in writing to the employer that she could not perform the required tasks, even with the proposed modifications suggested by the respondent.

[58] It is difficult to understand the respondent employer’s rationale for the termination. If it took the position that the applicant could do the accommodated laundry aide job, then it was open to it to continue to seek further clarification from the physician or suggest an IME to resolve the issue. It did not do so and insisted in writing, instead, that there was no medical information regarding restrictions rather than acknowledging that there was medical information, albeit information that it disagreed with or found lacking.

[59] Alternatively, if it took the opposite view, that it accepted the applicant’s physician’s views on the matter, the respondent could have communicated to the applicant that it had exhausted all avenues open to it under the accommodation process and suggested that she inform them of any changes in her restrictions if and when they occurred.

[60] The respondent did not do this either. Instead, it made the decision to terminate the applicant’s employment and, in doing so, given the connection between the reason for termination and the applicant’s disability, failed to meet its procedural obligation under the duty of accommodation and infringed her rights under the Code.

In the result, the Tribunal ordered payment of $5000 general damages, although it declined the employee’s request for severance pay.

As the HRTO noted, the safest approach for Ontario employers who feel that an employee can return to work, even though the employee’s doctor says otherwise, is to seek further clarification from the doctor or seek a second medical opinion before terminating the employee. Often a physician’s opinion as to an employee’s capacities may be colored by an incomplete or inaccurate description of job duties or symptoms provided by the employee. In such cases, providing objective descriptions of job tasks and any information the employer may have as to the employee’s true capacities (notably as captured on legally obtained video surveillance) may lead a physician to modify earlier opinions. In my experience, this approach has in a number of cases brought an employee’s physician over the employer’s view of the situation.

The second possible course action noted by the HRTO, that of advising the employee that it had exhausted all avenues under the accommodation process and asking her to advise of any changes in her restrictions, while sound, should not be taken by employers to mean that they must leave such employees on the rolls indefinitely. Eventually, an employer adopting this approach would be able to consider the employment relationship as frustrated and at an end. After a period of accommodating the employee’s incapacity by a leave of absence, if medical inquiries suggested that the employee was unlikely to return to work at regular or modified duties in the reasonably foreseeable future, the employment relationship could be considered as legally frustrated. In a jurisdiction such as Ontario the employer would have to provide to the employee her statutory termination and severance entitlements in that case. However, such a termination could lawfully be carried out without running afoul of anti-discrimination norms. As in all cases of terminating a disabled employee, this would have to be handled with care, compassion and, ideally, with the guidance of legal counsel.