'You can think you've done it all well, and the Human Rights Tribunal may disagree with you,' says employment lawyer explaining LTD discrimination claims
A recent BC Human Rights Tribunal decision provides essential insights into the obligations employers must meet when accommodating employees on long-term disability (LTD).
The case, which dealt with an employer’s application to dismiss an LTD accommodation complaint, underscores the critical role of proactive efforts, accurate job documentation, and ongoing communication in meeting the duty to accommodate.
In Littlejohn v. Clearview Demolition Ltd., The Tribunal’s partial denial of the dismissal application highlighted areas where the employer’s efforts fell short, leaving it exposed to further proceedings.
According to employment lawyer Andrea Raso of Clark Wilson in Vancouver, the decision offers a critical reminder to employers.
“They were probably just too anxious to pull the plug…and I think that’s why they’re paying the price for it,” says Raso.
Employment contract frustration not reached
The Tribunal’s decision in Littlejohn underscores the legal risks employers face when LTD accommodations are mismanaged. In this case, the employer’s attempts to cut short the accommodation process backfired, as the Tribunal ruled they did not meet their obligations. As Raso notes, the employer appeared to have acted prematurely:
“Frustration can occur where there is a disability, and the prognosis is that the employee will never be able to return to the workplace,” she says. “A lot of employers get excited when they have an employee who is disabled, who they're quite unhappy about being off, and saying, ‘You know what, I just want to terminate them as frustration of contract.’”
But as the Tribunal decision highlights, doing so prematurely can lead to significant legal risks and expose employers to ongoing legal proceedings. Employers who jump too quickly to conclusions about frustration may be making a costly mistake, Raso explains.
“If at the end of the day a court is left with two conflicting stories, the employer is not going to get the benefit of the doubt,” she says.
The Littlejohn decision underscores this, as the employer’s dismissal application was only partially successful and will now require further hearings on the accommodation issues.
Duty to accommodate: Tribunal’s emphasis on full efforts
In Littlejohn, the employer argued that offering a different job was sufficient to meet their duty to accommodate after the employee’s injuries impacted their ability to perform their previous role. However, as Graeme McFarlane, an employment lawyer with Roper Greyell, points out, it is not that simple.
“[Employers] have to exhaust every and all opportunity in your workplace, up to the point of what's called undue hardship, in order to satisfy the duty to accommodate,” says McFarlane.
“This is a place where a lot of employers fall down, because they don't do the duty to accommodate analysis properly.”
McFarlane further explains that in this case, the Tribunal noted several deficiencies.
“They made a bunch of mistakes. One of them was they didn't talk to the employee about other accommodation opportunities,” he says.
“What an employer has to do when someone is faced with…a disability that interferes with what they can do in their normal job, they have to say, ‘Okay, do we have something else in the organization that this person can do with their disability?’”
In Littlejohn, the Tribunal concluded that the employer had not fully explored these options, which undermined their case.
Inventorying job tasks for reasonable accommodation
McFarlane recommends employers create a comprehensive task inventory of all the roles in the organization, then bundling them if possible, into meaningful job opportunities for the disabled employee. Documentation is also crucial, he says – employers must document every step and actively seek options to adjust tasks, a process that Littlejohn underscores.
“You are required to bundle…job tasks together to see if there's a meaningful position for this person, given their…disabilities,” McFarlane says.
“You should always take very careful notes and documentation. And the duty to accommodate is really important. So you should be documenting the steps you're taking to search for another, what's called a reasonable accommodation.”
Importance of clear job descriptions
One critical element in accommodation cases is an accurate job description, as demonstrated in the Littlejohn decision, Raso explains.
“One of the things that employers should always do when an employee starts working, before they start working, is put in place an employment contract, which should append to a job description, so it's very clear what the employees' duties and responsibilities are.”
Reviewing this job description annually or biennially is equally important, she adds, to ensure it “still mirrors what the employee is actually doing, and then make changes if, in fact, there are certain things that maybe were bona fide occupational requirements at the time, but no longer.”
In Littlejohn, the lack of specificity in the job description created ambiguity, Raso points out. For employers, clarity is essential to make accommodation determinations easier and more defensible.
“If it's not clear between the employer and the employee what they're doing, then how do you know whether or not you can accommodate that? It just makes the employer's job really difficult,” she says.
Proactive communication: the employer’s responsibility
The Tribunal also stressed the need for regular communication between employer and employee during LTD. In Littlejohn, gaps in communication led to misunderstandings, and the employer ultimately used the employee’s “lack of communication” to justify their termination.
Raso emphasizes that this can be a dangerous assumption.
“It’s really hard for an employer… to rely on the employees’ lack of communication because it really is… the employer’s responsibility,” she says. “The employer is going to be called to task in terms of, you know, every step they took, and so if you’re missing even one step, it is going to come back to bite you.”
Additionally, wait times to see specialists are often lengthy, Raso adds, and employees may simply have nothing new to report.
“Right now, it takes months and sometimes a year. So sometimes the employee has nothing new to communicate, and so they just don’t communicate. And sometimes the employer can wrongly assume that that means a disinterest in the job,” says Raso.
“So it really is incumbent on them to reach out to the employee, and ask the questions about their status.”
Using medical assessments effectively
Clear medical documentation is essential to properly accommodate an employee; in Littlejohn, the employer failed to collect up-to-date medical assessments.
“Your employer is not entitled to the diagnosis of anything. They’re only entitled to know the restrictions and limitations that an employee may face in the workplace,” McFarlane explains.
Employers can request a functional capacity evaluation, he says, which identifies what an employee can and cannot do without disclosing their diagnosis. If that is insufficient, an employer may pay for an independent medical exam, although it cannot be mandated.
