legal words
You pick up the phone and hear this: “I just saw my doctor
after returning from my trip to West Africa. She says there
is a risk I might have Ebola. She instructed me to go into
quarantine. Is the company okay with that?” Receiving a
call like this is unfortunately a real possibility for human resources
professionals these days. Telling the employee "Yes, you can stay
away from work" in these circumstances is, of course, the prudent,
sensible and compassionate choice. It is also the employer’s legal
obligation (assuming the employee is telling the truth). While no
human rights tribunal in Canada has had to rule on the matter,
Ebola is definitely a “disability” under human rights legislation.
The fact an employee may have a rare illness does not fundamentally
change the rules for accommodating that employee. It
is well established that employers, employees and unions must
comply with the duty to accommodate employees with disabilities.
Employers are required to take an active role in investigating
various forms of possible accommodation, unions have a joint
responsibility to facilitate accommodation and, importantly, employees
must provide sufficient information about the disability
that requires accommodation.
So what does this practically mean for an employer faced with
an employee claiming to have a rare illness, such as Ebola? Can
an employer ask for evidence that the employee has, in fact, been
diagnosed with Ebola? Can an employer require proof that quarantine
has been ordered? Can an employer require information on
prognosis and a timeline for a safe return to work?
Fortunately, an employer can be confident in its right to make
these inquiries due to the Ontario arbitration decision Complex
Services v. O.P.S.E.U., Local 278, 217 L.A.C. (4th) 1 (“Complex
Services”). Complex Services recognizes that without sufficient
information from employees, it generally is not possible for employers
to provide safe and appropriate accommodation in the
workplace.
However, in many cases employees are reluctant to provide
what they view to be confidential medical information, often citing
privacy concerns. When this happens, it may not be clear to
employers how to proceed. Can an employer impose consequences,
such as refusing to continue benefits (like STD payments), or
refusing to allow the employee to return to work? Complex Services
tells us the answer is “yes”.
In Complex Services, the grievor had been on medical leave for
a physical disability when she returned to work. Upon her return,
the grievor claimed that her return to work plan required specific
new accommodations that the employer had yet to provide. The
Blue Island/Shutterstock.com
Information
WHAT EMPLOYERS NEED TO
CONSIDER WHEN EMPLOYEES MAKE
CLAIMS FOR DISABILITY-RELATED
ACCOMMODATION
By Malcolm MacKillop and Hendrik Nieuwland
Obligation
continued on page 15
HRPATODAY.CA ❚ FEBRUARY 2015 ❚ 13