On July 26, 2011 the BC Supreme Court handed down an interesting decision dealing with the scope of an employer’s duty to accommodate a disabled employee: Emergency Health Services Commission v. Cassidy. This decision stemmed from an application for judicial review of a BC Human Rights Tribunal case in which the Employer was found to have discriminated against Mr. Cassidy.
Cassidy was a part time paramedic with BC Ambulance Service (the Employer). The Employer suspended Cassidy from duty on May 13, 2005 because Cassidy had relapsing and remitting multiple sclerosis which resulted in him being unable to palpate pulses. The Union grieved the suspension and, in December 2005, Cassidy was returned to work as driver only. However, he was allocated work only after all of the other paramedics had been scheduled. As a result, Cassidy received only three days of work between December 2005 – June 2006. In June 2006, he was returned to work as driver only and scheduled in the same way as other paramedics.
At the human rights hearing, Cassidy claimed that the Employer had discriminated against him on the basis of physical disability. The Employer took the position that the ability to palpate a pulse was a bona fide occupational requirement (“BFOR”) for a paramedic and that Cassidy could not be accommodated as a paramedic. Evidence led by the Petitioners showed that every on-duty ambulance required two paramedics and that both had to be able to drive the ambulance as well as attend to patients. Cassidy argued that pulse palpitation was not a BFOR and that the Employer could accommodate him as a paramedic by arranging for his partner to palpate pulses.
The Tribunal accepted that palpating pulses was a BFOR for a paramedic, that BCAS could not accommodate Cassidy as a paramedic, and that, to hold otherwise, would be to require BCAS to lower its standard of care, thereby exposing patients to an unacceptable risk of harm. Therefore, the Employer had satisfied its substantive duty to accommodate Cassidy. However, the Tribunal stated that the duty to accommodate also had a procedural aspect which required the Employer to treat Cassidy fairly and with respect throughout the accommodation process and that the Employer had failed to satisfy the procedural aspect of the duty to accommodate. The Tribunal found that Mr. Garland, a Superintendent with BCAS, had done and said things which demonstrated a ‘real animus’ against Cassidy and a “determination” not to accommodate him.
In concluding that the Petitioners had failed to procedurally accommodate Cassidy, the Tribunal took into account the following:
- Cassidy had worked for the Employer for approximately one year before he was abruptly suspended and the decision to communicate the change should have been done in a sensitive way (i.e., the Superintendent should have spoken to Cassidy in person instead of phoning him at the end of the day and telling him he could not report to work).
- The Superintendent’s decision to treat issues arising from Cassidy’s functional limitation as an occupational health and safety hazard, was demeaning to Cassidy.
- Inappropriate comments about Cassidy’s illness were made to other crew members and this led to the spreading of misinformation.
- There was no justification for the Employer not allowing Cassidy to work in some other capacity prior to June 2006.
- The Superintendent’s actions resulted in Cassidy getting only three days work between December 2005 – June 2006.
- The Employer’s failure to proactively and diligently search for ways to return Cassidy to work and its belated, half hearted and grudging efforts, particularly in light of the fact that Cassidy was not entitled to short term disability benefits.
- The fact that the Employer took active steps to have Cassidy’s driver’s license and paramedic license revoked.
At review, the court agreed with the Tribunal that the ability of a paramedic to palpate pulses was a BFOR.
However, the court found that the Tribunal had erred in law by considering whether the Employer had treated Cassidy “fairly, and with due respect for his dignity, throughout the accommodation process”. The court stated that the single question to be asked in these cases, is whether the employer could accommodate the employee without experiencing undue hardship. Consequently, the question that the Tribunal should have considered was whether BCAS reasonably accommodated Cassidy, including whether it ought to have allowed him to work in another existing position or a position created for him at an earlier date and whether accommodating him in any of those positions would have caused BCAS undue hardship.
The court then remitted the matter to the Tribunal to consider whether the Employer had reasonably accommodated Cassidy, whether it did so soon enough and whether the accommodation imposed undue hardship.
Duty to accommodate Principles
In its discussion, the court provides a comprehensive analysis of the law relating to the duty to accommodate in the workplace. We have distilled the salient principles for your reference.
- The BC Human Rights Code requires the employer to refrain from discriminating against an employee on the basis of disability, but permits an employer to do so if the standard is a BFOR and if the employer cannot accommodate the employee without undue hardship.
- The goal of accommodation is to ensure that an employee who is able to work, can do so, without causing the employer undue hardship.
- The employer does not have a duty to change working conditions in a fundamental way, but has a duty to arrange the employee’s workplace or duties to enable the employee to do his/her work short of causing undue hardship.
- The test for undue hardship is not total unfitness for work in the foreseeable future (paragraph 40):
If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test.
- The effect of the duty to accommodate should not completely alter the essence of the contract of employment, i.e., the employee’s duty to perform work in exchange for pay.
- The employer’s duty to accommodate ends where the employee is no longer able to fulfil the basic obligations associated with the employment relationship for the foreseeable future.