Accommodate Or Else
The duty to accommodate is one employers must take seriously lest they fall victim to costly litigation and resulting award of damages to employees who have suffered economic loss resulting from an employer’s failure to fulfill this duty in accordance with the law.Recently, the duty to accommodate has been at the forefront of the employment bar with the decision of Keayes v. Honda. In Keayes, the trial Judge decided that Honda failed to properly discharge its duty to accommodate the plaintiff who suffered from Chronic Fatigue Syndrome. Honda was found to have accommodated appropriately for a time but later breached this duty upon wrongfully terminating the plaintiff who refused to meet with Honda’s physician. The decision is significant not only for the substantial award of damages but also for expanding the range of the causes of action which a plaintiff can pursue in the context of a wrongful dismissal suit. In particular, the plaintiff successfully sued Honda for wrongful dismissal and damages resulting from discrimination and harassment. At trial, the Judge awarded the plaintiff 15 months pay in lieu of notice plus an additional 9 months pay on account of Wallace type damages for the employer’s misconduct, and further awarded $500,000.00 in punitive damages. The punitive damage award was later reduced to $100,000.00 by the Ontario Court of Appeal which upheld the trial Judge’s finding that Honda failed to discharge its duty to accommodate the plaintiff in accordance with law and the Human Rights Code more particularly.
Keayes was appealed to and heard by the Supreme Court of Canada in February of 2008 and the Court’s decision is highly anticipated. That said, regardless of how the Court rules on a number of important issues, such as an individual’s right to pursue courtroom damages for discrimination as opposed to being restricted to the Human Rights forum, employers will undoubtedly continue to be required to make accommodation a foremost priority.
One of the biggest challenges facing employers, however, is the ability to satisfy themselves as to an employee’s condition in order to properly accommodate while not infringing upon the employee’s right to privacy or right to not be discriminated against. The challenge is made greater given that, often enough, doctor issued medical notes are ambiguous and scant in detail. An employer in receipt of a standard medical note indicating that an employee will be missing from active duty for however long due to illness will have good cause to insist on further particulars. The general rule of thumb is that an employer is entitled to information relating to an employee’s condition but not entitled to know the specific diagnosis. To be safe, employers should seek the written consent – and seek assistance from legal counsel before obtaining same – of the employee to contact the employee’s doctor directly in cases where the medical information received is insufficient.
Once satisfied of the nature of the employee’s condition, recovery prognosis, and expected return to employment date, an employer will be better poised to properly discharge its duty to accommodate. In furtherance of the same, employers should endeavor to keep the lines of communication open with both the employee to be accommodated as well as that employee’s medical staff in order to accurately assess and account for any restrictions or impediments facing the employee as a result of the medical condition. Doing so will allow for effective accommodation and limit exposure to legal liability.