Jan 30, 2017

Accommodating disabled employees: Can an employee demand to work at a different workplace?

Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4 (CanLII)

I have written a number of blogs on the challenges associated with accommodating employees with mental disabilities. I have also blogged on the new obligations that were imposed on employers with 50 or more employees earlier this year with respect to disabled employees including the requirement to prepare a written accommodation plan.

Can a disabled employee demand to be moved away from a co-worker?

I have been involved in a number of cases where an employee has claimed that he could not work in the same work space as a co-worker for mental health reasons and asked to be moved to a different physical location.

The case: Emond v. Treasury Board

The adjudicator concluded that an employer failed to accommodate an employee on long-term disability who requested that she be permitted to work in a different work location than a co-worker for mental health reasons. As a result the adjudicator ordered the employer to move the employee to another of its nearby workplaces, and to compensate the employee for the difference between the amount she received while on long-term disability and her salary due to the employer’s failure to accommodate.

The facts: The devil is in the details

Did a disability exist? The adjudicator concluded that the employee suffered from emotional stress caused by a co-worker. Although the adjudicator recognized that “stress cannot automatically be associated with a disability or an incapacity,” she concluded that the employee’s medical condition did constitute a disability or an incapacity, thereby triggering the employer’s duty to accommodate.

Was there medical evidence supporting the accommodation request? In the opinions of her general physician and her psychologist, the employee would be capable of returning to work if she was permitted to work in a different workplace than the co-worker. Although the employer suggested that the employee should attempt to return to work on a different floor of the same workplace, both of the treating physicians disagreed. The employer refused to permit the employee to work in a different workplace or from her home. The adjudicator commented that the employer did not call any rebuttal medical evidence nor discredit the employee’s treating physicians.

Lessons to be learned

  1. Do not refuse an employee request to move work locations for mental health reasons before carefully considering the reason for the request.
  2. Request medical reports in support of the employee’s request. If you are not satisfied with the documentation provided by the employee, send the employee to a physician or disability management consultant of your choosing if you have the right to do so.
  3. Prepare an individual accommodation plan under the Accessibility for Ontarians with Disabilities Act.
  4. Update your employment contract if your organization does not have the right to send a disabled employee to a doctor of the employer’s choosing.
  5. Maintain regular contact with the disabled employee and update the individual accommodation plan as needed.