December 6, 2023
Mr. Wan Ji Li based his complaint on the fact that his employment was terminated when his hands had become swollen and painful after a strenuous job at Aluma Systems. The medical evidence was that his swollen hands and pain would be resolved by use of muscle relaxants and anti-inflammatory medication followed by a period of rest or light duties at work.
The Tribunal considered the test for establishing a “physical disability”. The tribunal affirmed its position that:
“… the concept of disability, for human rights purposes, has generally been held to involve a physiological state that is involuntary and has a degree of severity, permanence and/or persistence. Generally, the disability impairs a person’s ability to carry out the normal functions of life to some degree and poses an impediment to a person’s participation in the economic or other areas of life which the Code seeks to protect against. It is a case-by-case analysis.”
In a previous decision, the Tribunal had decided that a lower back injury that would typically have a recovery time of eight weeks was a “transitory” condition that did not meet the requirement of a physical disability under the Code. The back injury did not have the degree of permanence required to establish a physical disability.
The Tribunal concluded in this case that Mr. Li’s symptoms were “transitory and not permanent in nature”. The Tribunal stated that: “His medical condition lacked the severity, or permanence or persistence which would qualify it as a physical disability with the meaning of the Code.”
EMPLOYERS SHOULD BE FAMILIAR WITH LEGAL DEFINITION OF PHYSICAL DISABILITY
It is important for employers to recognize the actual legal requirements to prove a physical disability when a human rights issue is raised by an employee.
Employers whose employees are covered by a collective agreement should also be aware that the same definition of physical disability would normally be the standard used in dealing with a human rights issue under a collective agreement. Collective agreements commonly use the same language as the Human Rights Code, or incorporate the Code into the collective agreement by reference. Arbitrators dealing with a human rights issue under a collective agreement will apply the same tests as the Human Rights Tribunal in deciding whether a grievor has established a physical disability.
Generally speaking, employees have a duty to bring a disability to an employer’s attention, whether the disability is physical or mental, if the employee requires accommodation of the disability. However, in some circumstances, the employer has a duty to inquire. If the employer is aware that the employee has a possible medical or mental health condition affecting the employee’s work performance, the employer must inquire whether accommodation is needed before disciplining the employee or terminating employment based on the conduct.
THE DUTY TO INQUIRE
In the case of Bowden v. Yellow Cab Co., the B.C. Human Rights Tribunal considered the circumstances in which employers are obligated to make inquiries of their employees about the possibility of a disability requiring accommodation.
Mr. Bowden was suffering from a mental disability and took time off accompanied by a doctor’s note stating he had a medical reason to be absent. When he did not attend a board meeting on the day he was scheduled to return, he was deemed by his employer to have abandoned his employment. Mr. Bowden alleged his employment had been terminated, at least in part, on the basis of mental disability.
The key question considered by the Human Rights Tribunal was whether Mr. Bowden had exhibited any behaviour in the workplace that suggested he was suffering from a mental disability, or provided any other basis such that his employer ought to have known he was suffering from one. The Tribunal determined that he had, as the employer had described Mr. Bowden as making “erratic and irrational statements” and it was aware he had been absent from work for at least the previous two weeks, with supporting medical documentation. In these circumstances, the Tribunal concluded that the employer ought to have been aware that there may be a relationship between Mr. Bowden’s medical condition and his absence from the board meeting, and had a duty to inquire prior to making any adverse decision based on the absence.
Information provided by Larry Page, an employment lawyer with Davis LLP. Reproduced with permission of the copyright owner. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Davis LLP, please visit dlapiper.com.
Additional information provided by Jakob Sanderson, an articling student with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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