For 18 Months Following a Mental Health Leave, Greg Worked Two Days a Week. Then He Tried to Make the Disability Accommodation Permanent
When an employee has a disability, an employer has an obligation, pursuant to the Ontario Human Rights Code, to accommodate that disability to the point of undue hardship.
What “undue hardship” means in any given situation can be truly difficult to understand. It can include a graduated return to work or making some adjustments to the physical or mental aspects of the position. Sometimes it just means refraining from terminating the employee or discriminating against them as a result of their disability and absence.
I can’t blame employers for sometimes thinking that “undue hardship” is an impossible thing to prove. The law expects a lot. There are, however, limits to what an employer is expected to do.
Greg worked as a manager in a provincial government environmental branch for many years. As a result of mental health issues, he went off work for a leave that lasted many months. In August 2021, he returned and pursuant to his doctor’s recommendation only worked two days a week. For those two days the employer paid him his regular management wages and the other three days he collected a percentage of his wages from the disability insurer.
This arrangement lasted for 18 months, after which Greg handed in a doctor’s note indicating that his restriction of working only two days a week was permanent. He needed the other three days to recover.
Greg was a manager. When they first reduced his work week to two days, the employer took away most of his management duties and assigned him to special project management. It really wasn’t possible for him to be somebody’s boss but only present two days a week.
When the employer received notice that this arrangement was permanent, it advised Greg that it could no longer accommodate his disability and put him on sick leave. He received disability payments that were only a percentage of his regular full-time wages.
Six months later, the disability insurer cut Greg off. He could have appealed but would not sign the consent required to have an independent psychiatric assessment.
After a few months of going without any income, Greg elected to retire and start collecting his pension. He also filed a complaint against the employer. He believed that since the employer had allowed the arrangement of only working two days a week for 18 months, it was not an undue hardship to allow that arrangement to continue. By refusing to do so, it had discriminated against him based on his disability.
As difficult as it is to know what “undue hardship” means in any given circumstance, one established principle is that an employee, in the long term, must be able to perform the essential tasks of their position, even after accommodation.
If an employee is unable to perform the essential or core duties of their position, regardless of attempts to accommodate, the employer need not keep them in their position.
The arbitrator in this case decided that the employer’s reduction of Greg’s work week to two days was a good-faith effort to allow him to recover and hopefully return to his core duties. Once it became clear that he would never be able to do that, regardless of the arrangements, it had a right to put him off on sick leave. It has always been my experience that managers, people who supervise others, are always paid more than the project managers who work alongside them. Greg was getting that salary because of the stress involved in the core duty of supervising employees.
The adjudicator found that the employer had accommodated Greg to the point of undue hardship and his complaint failed.
This article was originally published by The Hamilton Spectator.
