Duty to Accommodate Disability Related Absenteeism

In a recent decision, the BC Human Rights Tribunal addressed the extent of an employer’s duty to accommodate excessive absenteeism caused by disability. An employee began experiencing symptoms which were later diagnosed as anxiety and depression. He went on leave and remained absent for over a year. The employer took steps to accommodate the employee including by extending his leave; continuing his benefits; and by making inquiries about his abilities to facilitate his return to work. The employee’s applications for STD and LTD benefits were both initially denied. Ultimately he was successful in obtaining LTD benefits.

After about one year of absence, the employer gave notice of termination based on its understanding that the employee was unlikely to be able to return to work in the foreseeable future. The employee immediately requested another extension of his leave as new medical evidence suggested he might be able to return to work following treatment. However, the employer decided not to rescind the notice.

The complaint to the Tribunal alleged the termination was discriminatory, based upon mental and physical disability. The Tribunal agreed, and found that the employer failed to accommodate the employee’s disability to the point of undue hardship. While acknowledging the employer had made some efforts towards accommodation, the following factors led the Tribunal to conclude that the point of undue hardship had not been reached:

• Inadequate notice – Notice that his employment was in jeopardy if he did not return to work in the foreseeable future occurred only three months prior to termination. The employer also failed to inform the employee that it would consider any further medical information that became available during the notice period.
• Failure to consider new medical information – When new medical information became available, the employer failed to consider it.
• No pressing operational or financial need – The employer did not post a replacement position until three months following termination and did not fill that position for nine months. Further, the cost of extending the employee’s leave was only $300/month.

The Tribunal issued a declaratory order that the termination was discriminatory, and awarded the Complainant $10,000 for injury to dignity as well as reimbursement of benefit costs.

Morris v. ACL Services, 2012 BCHRT 6