Recently, Zubas Flett Liberatore Law Lawyer, Ashna Gakhar, was quoted in a case comment by Jeffrey Smith of Canadian HR Reporter. The article, which discussed disability accommodation policies and employer obligations, is available to read here and below.
When it comes to being fit for work in the foreseeable future, it’s not a fixed dated, it’s more flexible
“When drafting [disability accommodation] policies, it’s important for employers to be thoughtful and not apply a mechanical, cookie-cutter approach – you have to look at the individual needs of each employee.”
So says Ashna Gakhar, an employment lawyer at Zubas Flett Liberatore LLP in Toronto, after the Federal Public Sector Labour Relations and Employment Board ruled that the Canada Revenue Agency (CRA) didn’t meet its obligation to accommodate a term employee’s disability when it didn’t extend his term.
The CRA operates a taxpayer services call centre in St. John’s, NL. Each year, it hires more than 100 term employees under contracts with a specific term. There is no guarantee of continuing employment beyond the contract’s term, but the contracts state that the term could be lengthened or shortened in accordance with operational requirements.
The CRA offers extensions or renewals to term employees based on performance and forecasted work, as demand can vary during different times of the year.
The worker was hired as a taxpayer services agent in January 2017. The tax data centre underwent an expansion of services, so he remained employed for the full probationary period through a series of term extensions.
Sick leave policy
When the worker started with the CRA, the CRA’s sick leave policy involved offering employees on sick leave term extensions until they were able to return to the workplace, as long as other term employees at the same level and in the same job were also extended. However, in 2017 the policy changed and required an employee on sick leave to provide medical information to show that they would be returning to work before the end of their term contract or “in the foreseeable future.” An employee who provided such information would have their contract extended the same as others in the same position. If not, their contract would “come to its natural end.”
The worker suffered from kidney disease and, in January 2018, he started experiencing side effects from dialysis and had to increase his sessions. On Jan. 8, he provided a doctor’s note stating that he was to be off work indefinitely for medical reasons, until further notice.
The worker initially used paid sick leave and on Jan. 24 he was placed on leave without pay.
On March 20, the CRA extended the worker’s term contract, along with other term employees, for two months. The worker wasn’t asked to provide any additional medical information or a return date.
The worker communicated with his team leader in April, saying that his treatment was progressing well but there was no estimate of his return-to-work date. Management discussed his status, and they decided that if he was unable to return to work, his contract would not be extended. At the end of April, the team leader told the worker that “a full clearance will be required from your doctor” before the CRA would renew his contract. If he was cleared after the expiry of his contract, the CRA would consider him when it started rehiring term employees.
Term contract not extended
The worker’s contract ended on May 22, but he was unable to get a medical note. The CRA offered three-month contract extensions to other taxpayer services agents, but not the worker.
The worker filed a grievance alleging that the CRA’s decision not to extend his term employment constituted discrimination based on disability under the Canadian Human Rights Act (CHRA).
Three weeks after filing his grievance, the worker obtained a doctor’s note stating that he could return to work “on an ease-back schedule as required.” The CRA directed that an occupational fitness assessment form (OFAF) be completed, which the worker provided on Sept. 7. The OFAF stated that the worker could return to work with limitations for 2.5 days per week, gradually increasing the hours and reassessing every two weeks.
The CRA investigated the grievance and determined that there had been a miscommunication between the worker and his team leader – the worker didn’t actually need full medical clearance, just clearance to return to work full-time. As a result, the investigator found that the CRA didn’t engage in discriminatory actions.
The worker took his case before the federal board for adjudication.
Duty to accommodate
The board found that the CRA’s requirement for employees on sick leave to provide a return-to-work date within the next contract period placed an arbitrary time limit on the duty to accommodate, noting that the worker’s medical condition could have been accommodated without undue hardship as his condition improved a few months after his employment ended.
The board also noted that when an employee’s medical condition prevents them from returning to work in the foreseeable future, termination can be permissible because being medically capable of performing their job is a bona fide occupational requirement, making accommodation undue hardship for the employer. However, in order to determine that undue hardship has been reached, the duty to accommodate requires an individual assessment of the employee’s medical condition and if any accommodation could help the employee attend work in the foreseeable future, the board said.
The board found that the CRA’s policy for extending term contracts was discriminatory because it applied an improper interpretation of the “foreseeable future” standard outlined by the Supreme Court of Canada in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43. The CRA’s position was that undue hardship exists when there is no medical information confirming a return to work during the term of the next contract renewal.
The board found that the CRA’s revised policy increased “the pressure on an employee with a disability” because it didn’t consider the worker’s individual circumstances or give him more time to obtain an up-to-date medical note – the CRA gave the worker until the end of his term contract, said the board, noting that the only medical information it had at that point was the short doctor’s note from Jan. 8. In addition, after the worker’s contract wasn’t extended, an OFAF indicated that he could return on a gradual basis and work up to full-time employment, the board said.
The revised policy also tried “to predetermine the point of undue hardship for granting any future extensions,” said the board.
Foreseeable future
As the CRA’s operations were dependent upon hiring term employees continuously, the non-discriminatory foreseeable future time frame didn’t end at the completion of the worker’s current term – it was “the length of time in which there will be an operational need for the employer to extend term employees generally who are working in the same position,” said the board, noting that other term employees were extended past May 2022.
“The CRA took a pretty hard approach just because there wasn’t clarity around whether the worker would be able to return by the end of the contract renewal date – they stuck to that timeline to make that decision,” says Gakhar. “When it comes to the duty to accommodate, employers should be far more considerate and careful, to say the least.”
When it comes to accommodating employees on renewable term contracts, employers have to be flexible, adds Gakhar.
“It’s not just the end of the contract term that determines whether the contract should be renewed, the timeline is flexible,” she says. “Employers have to go the extra mile and look at other factors, like the operational needs of the business and whether other employees are being renewed – those factors come into play, not just how the employee on their own is doing.”
Impact of termination
The board also found that the dismissal had a significant impact on the worker’s life – the worker’s wife testified that after being denied an extension, the worker “looked defeated and seemed to sink into a depression” and they struggled to pay their bills.
The board ordered the CRA to pay the worker’s estate – the worker died during the hearing process – $15,000 in damages for pain and suffering under the CHRA.
The CRA could have reduced its liability by reaching out for more information on the worker’s medical condition rather than just relying on the short medical note the worker initially provided, according to Gakhar.
“[The CRA] should have reached out to the physicians themselves and found out about the chances of improvement for the worker, what that timeline looked like, if he was progressing well – it should have gathered more information to make the determination whether the worker was fit enough to come back and perform the basic functions of the role,” she says. “It relied on the worker to provide that information, but it would have been helpful if it did its due diligence.”
“Undue hardship is a high standard, and when it comes to being fit for work in the foreseeable future, it’s not a fixed date, it’s more flexible,” adds Gakhar. “And this is where the employer’s obligation to do its due diligence comes into play.”
If you have any questions or inquiries regarding disability policies, contact Zubas Flett Liberatore Law at 416-593-5844 or questions@employment-lawyers.ca