BC employer successfully proves undue hardship

The British Columbia Human Rights Tribunal has dismissed a complaint against an employer over an alleged failure to accommodate a worker’s disability, supporting the employer’s position of undue hardship.

The worker, 64, was a security attendant for University of Victoria Properties (UVic Properties), a property management company in Victoria. She was hired in 2012 to patrol the Vancouver Island Technology Park, becoming a full-time employee in 2013.

The Technology Park was a commercial property with three buildings and multiple parking lots. The buildings had multiple floors, basements, mezzanines, and mechanical rooms. The buildings had elevators, but they were shut down at night.

UVic Properties provided 24-hour security services and security attendants worked eight-hour shifts. The worker worked overnight shifts.

The worker was diagnosed with arthritis in her right knee in 2017. In October 2018, UVic Properties introduced a tracking system for monitoring security patrols at the Technology Park. Staff on patrol were required to scan pucks around the property twice each during each shift, as they were required to patrol the entire property twice per shift.

The worker had previously been only covering the entire property once per shift, as she had thought she was required to do two indoor patrols and two outdoor patrols while checking the entire property once.

Disability hindered worker

The company clarified the requirements but the worker found it difficult to patrol the entire property twice per shift with her arthritis, as it involved walking up and down 40 flights of stairs per shift. As a result, she took a medical leave in November 2018. She received long-term disability (LTD) payments under the company’s plan.

The worker had knee replacement surgery in February 2019 and her surgeon had no concerns about her limitations other than she should avoid “high impact activities,” and she could return to work one year after her surgery.

The LTD provider referred the worker to a rehabilitation plan that included a graduated return to work. She began the return-to-work plan on Oct. 28, working four-hour shifts three days per week with a limit of two consecutive flights of stairs. However, she had difficulty and the plan was halted.

The return-to-work plan restarted on Nov. 25 with the worker working alongside another security officer during the day and using elevators. She was expected to assume full duties and hours by Jan. 13, 2020.

However, the worker provided a medical form from her doctor specifying a permanent restriction that she could only walk 20 flights of stairs per shift, which was half of the 40 flights required by her patrol duties. UVic Properties said that it wasn’t possible to accommodate her with the elevators, as there was a risk of being trapped during the overnight shift and it would take too long for someone to arrive.

Worker declined alternate position

UVic Properties asked for clarification on the worker’s restrictions and discussed a part-time custodial position that was within her restrictions, but the worker wasn’t interested in any position other than security. According to the worker, she said she might be able to work in the security supervisor position, but that position wasn’t open.

UVic Properties took a good approach to the accommodation process, says Brooke Finkelstein, an employment lawyer and workplace investigator at West Coast Workplace Law in Richmond, BC.

“They engaged in an interactive process with the worker following her knee replacement surgery and sought information from the worker's doctor, had meetings with the worker, and allowed her to follow her gradual return to work plan,” she says. “Accommodation is a collaborative process and it requires active participation from both the employer and the employee, so employees have an obligation to engage in the process and provide accurate information about their ability to perform their job, and employers can reasonably rely on that information to assess accommodation options.”

On Jan. 19, UVic Properties confirmed that it couldn’t accommodate the worker’s return to work.

On Jan. 21, the company sent the worker a letter stating that it was unable to meet her accommodation requirements without undue hardship, so her employment was being terminated for being unable to fulfill the requirements of her position.

Discrimination complaint based on physical disability

The worker filed a human rights complaint alleging that the termination constituted discrimination based on her physical disability. She argued that reasonable accommodation was available, including using elevators during her patrols, reducing patrol duties, or alternative work.

UVic Properties maintained that none of these options were feasible without compromising their security obligations to the property tenants. It stated that using elevators posed a safety risk and that the security of the site couldn’t be maintained adequately with reduced patrols. They also noted that the worker wasn’t interested in a custodial position, which could have been a viable alternative.

The tribunal found that the worker had a disability and her dismissal was an adverse impact related to her disability. As a result, UVic Properties had the onus to prove that it exhausted accommodation options and its requirement for her to walk up and down 40 flights of stairs per shift was a bona fide occupational requirement.

The tribunal also found that the company met the first two steps of three-part Meiorin test for a bona fide occupational requirement – they had to be accountable to tenants for providing proper security, which required two full patrols of the property each shift including the stairwells, and avoiding the risk of a security officer getting trapped in an elevator. The requirement for 40 flights of stairs was rationally connected to the performance of the job and it was adopted in an honest and good-faith belief that it was necessary, said the tribunal.

The tribunal determined that the worker’s disability-related limitations couldn’t be reasonably accommodated without undue hardship, as the requirement for security personnel to patrol the property, including navigating 40 flights of stairs, was a bona fide occupational requirement.

Undue hardship

In evaluating the feasibility of using elevators as an accommodation, the tribunal noted the company’s position about operational concerns, including risks associated with elevators malfunctioning and security personnel being trapped. This would leave the property unsecured for significant periods, creating safety issues for tenants and the public. Consequently, the tribunal concluded that allowing elevator use during patrols constituted undue hardship.

The possibility of reducing patrol requirements was also dismissed as impractical. UVic Properties argued that conducting two full patrols per shift was the minimum requirement necessary to maintain security standards and fulfil contractual obligations to tenants. Reducing the worker’s patrol duties wouldn’t meet those obligations and couldn’t be accommodated without compromising service levels, the tribunal said.

“[UVic Properties] had the burden of proving that it met its duty to accommodate to the point of undue hardship and so, essentially, they had to prove that the requirement for the worker to walk up and down 40 flights of stairs per shift was a bona fide occupational requirement,” says Finkelstien. “It did this by showing that it was essential for security officers to complete two full patrols, including stairwells, to ensure tenant safety and secure the premises, and to avoid being trapped in an elevator when working alone - the tribunal found that the requirement was reasonable and adopted in good faith.”

The worker had suggested that she could take on the security supervisor role but the position was already filled. UVic Properties raised the option of part-time custodial work, but the worker had not expressed interest in this alternative and there were no other open positions available at that time, said the tribunal.

“The company had ongoing efforts to engage the employee and her doctor, to explore accommodation options and clarify her limitations,” says Finkelstein. “The company’s efforts with the meetings with the worker, the medical reports, and assessments of the employee's abilities in relation to the job requirements, were crucial in showing that it had exhausted all reasonable possibilities - and the worker expressed that she wasn’t interested in exploring other types of work.”

Duty to accommodate met

The tribunal concluded that UVic Properties met its obligations under the Human Rights Code, making sincere efforts to explore accommodations before resorting to termination and demonstrating that no reasonable accommodation was available without undue hardship. The tribunal dismissed the worker’s complaint, noting that accommodation is a collaborative process that requires participation from both the employer and employee.

UVic Properties’ success in this case was supported by the detailed records it kept of its accommodation efforts, something all employers should do, according to Finkelstein.

“All accommodation efforts, including meetings, documents from medical professionals, and assessments of job requirements, should be documented and employers must also thoroughly investigate all possible accommodations, including modified duties and alternative positions,” she says. “And if they do end up in a position where they're going to claim undue hardship, they have to rely on clear evidence such as operational requirements, costs, or safety concerns to justify why further accommodation isn’t going to be possible.”

See Disbrow v. University of Victoria Properties Investments Inc. and others, 2024 BCHRT 235.