Accommodating disabilities of any kind is a major challenge confronting HR professionals - and for more than 150 delegates at this week’s Employment Law Masterclass, it was a key issue to learn more about.
At the masterclass, Lorna Cuthbert of Stikeman LLP shared her expert insights into best practices for HR leaders in dealing with accommodation requests, legal obligations for accommodating visible and invisible disabilities, and the kinds of penalties employers can face when they fail to get accommodations right.
Cuthbert spoke to HRD about what HR employers need to know about accommodating disabilities, and how to avoid making potentially costly mistakes.
What’s the biggest accommodation mistake you’re seeing?
The biggest mistake employers make is ignoring employees who go off on sick leaves – whether it’s short-term disability, long-term disability. They need to have good practices, right from the beginning, because it’s best for an employer with a sick employee to think about returning to work, and sometimes what I find is the conversation goes away – whether employers are afraid of talking to their employees – but you should be afraid of communicating with your employees to try and get them back to work.
I often get the call that ‘Mrs Smith has been away for three years and now we’d like to terminate her’, and there’s been no dialogue and you’re just not allowed to say ‘it’s three years and you’re gone’. Better dialogue throughout the process between employers and employees is really something that I think employers should look at.
What do employers need to know about independent medical evaluations?
There are appropriate circumstances. It’s hard to define what an appropriate circumstance is - it will be case by case.
Employers shouldn’t be afraid to think that, in certain circumstances, an independent medical might be appropriate – if they’re frustrated with what they’re getting from the employee’s medical provider, if they think the employee might be able to be accommodated and they’re not getting answers from the medical provider – they’ve given, for example, the job description and the employee’s medical provider is just saying ‘no, they can’t do it at all’, you may have an opportunity to ask for an independent medical.
It’s early days – I don’t think you can think ‘oh I’ll just go get one in every case’, but there’s thought that you might, in appropriate circumstances, get one.
What do employers need to understand about their duty to accommodate?
I think the procedural duty still surprises some employers and HR professionals – that initial duty to gather all facts, gather objective evidence, consider your workplace, consider that it may not just be the employee’s own job that you have to look at. You have to look a bit broader within your organization. The procedural duty of actually understanding what the employee’s limitations are – I think, again, comes back to the employers perhaps just not doing their homework and wanting the problem to go away, and it’s not going to go away. It’s going to be something they’re going to have to address.
What does accommodating to the point of “undue hardship” mean?
Even if you think about just the words “undue hardship”, what does that mean to an employer, it’s a tremendously large obstacle to get to. Think about what are the essential duties of the position, and even with accommodation, can those still be done? Because that might be the answer there.
Think about, maybe in the circumstances, health and safety – are we able to make out an argument that really this person can’t be brought back for objective health and safety reasons – the key is the objective evidence, at all times, has to be forefront. It can’t be anecdotal, it can’t be just what we think. It needs to have some planning, but I think for employers, they need to understand that trying to make an argument on undue hardship is just really tremendously difficult in this day and age.
What’s the worst-case scenario for employers if they don’t get this right?
There’s two things. One is obviously the monetary, because we are seeing the Human Rights Tribunal increase their awards for general damages. Obviously the compensatory, if the employee’s off for a long time and they don’t get a hearing quickly, then you may have to pay all of the back wages. But it’s the non-monetary … sometimes they don’t want to bring this person back, but what does that message mean for other employees? Do the employees view their employer as somebody who is working hard to help employees who might have legitimate illnesses, or are they viewing their employer as somebody who wants to be done with individuals who have disabilities.
As we move forward, that’s an important thing – that employee morale aspect of ‘how’s my employer as an employer? Are they a fair employer? And how will they respond to me when I have an illness?’ There’s the law and the monetary, but there’s your employee morale and your employee population generally.
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Legal experts reveal what employers must learn