Archive for July, 2009

Accommodation the second time around

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Accommodation can present a challenge to employers when confronted with the prospect of an employee who requests it, whether it’s because of a physical disability, medical condition or family status. While all must acknowledge the legal requirement and the human right to accommodation, trying to determine the second part of the duty to accommodate — to the point of undue hardship — can cause major headaches.

The point of undue hardship depends on different factors which make it different for every employer and employee. It can depend on any combination of things, such as the employee’s job duties, staffing levels and the employer’s financial situation to name a few. There have been many cases where the employer refused to accommodate an employee because it thought it had reached the point of undue hardship, only to have a court find, upon further examination, the employer could have gone to further lengths.

But here’s an interesting situation: A female employee gets pregnant and is diagnosed with a condition that means it will be a difficult pregnancy and she should stay away from any physically demanding or stressful situations. The employer agrees to accommodate her by allowing her to work from home in a more low-key environment where she can rest frequently.

A couple of years later, the employee becomes pregnant again, with the same concerns. However, she’s in a different job for the same employer, with different tasks. The employer offers several options for accommodation by assigning her other less-strenuous tasks, but working from home isn’t an option this time around. The employee refuses, saying the jobs aren’t equivalent or too physically demanding and she thinks working from home again is the best and safest option.

Determing the level of accommodation to which an employee is entitled can be a complicated process, but it can be muddied further if the employer isn’t able to offer the same accommodation a second time around. If an employee is accommodated one way during an illness or disability, should the employee expect to be accommodated the same way if it happens again? Is the employer obligated to use the same method of accommodation for the same circumstances once it’s established for an employee, or is each circumstance separate and unique? In the case above, the employee was in a different position, but what if it was the employer’s circumstances, such as staffing levels or financial situation that changed rather than the employee’s job?

Reference letters — the myth of liability

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

When an employer is looking to hire, contacting a candidate’s references is part of the normal due diligence process. References from previous employers can be particularly helpful, because they provide insight into the candidate’s on-the-job track record.

However, useful and informative references can be few and far between because employers seem to be wary of saying too much and getting into trouble, particularly if a reference isn’t exactly glowing.

Many employers prefer to give the basic facts about an employee’s time with them, such as position, length of service and job duties — also known as the “name, rank and serial number” reference. While this provides some information, it’s not really much help to someone trying to promote their skill nor to a prospective employer trying to figure out if a candidate is a good fit.

Why the caution? Some employers are afraid of getting in trouble if some of the information in a reference letter is inaccurate — from a prospective employer relying on the reference or a former employer who might feel slandered from a bad reference. But is there that much of a risk for trouble?

The answer appears to be no — there doesn’t seem to ever have been a successful action against an employer in Canada for a bad or inaccurate reference, according to Stuart Rudner, a partner with Miller Thomson in Toronto. As long as the letter described the employee in a truthful way and didn’t make anything up, there shouldn’t be any danger. And, in the case of a worker dismissed without cause, anything that could help the employee find work more quickly would be beneficial, as it could save the employer some money by reducing the notice period.

If a letter includes an employer’s legitimate opinions on the worker’s performance, what’s to be afraid of?  Rudner says the only legal trouble that could come from a reference letter would be something that could be construed as bad faith that causes harm to a former employee’s job search. However, he also says bad faith could be gleaned from a failure to provide a reference. So it may actually be safer to bite the bullet and write something.

Do detailed reference letters really expose employers to liability, or is it actually more beneficial to provide them? Why are many employers so cautious in writing them?

Smoking pot a disability?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Addiction to drugs and alcohol has been recognized as a physical disability that must be accommodated by the employer to the point of undue hardship. Much of the rationale for this is that addiction is considered a disease those who suffer from it can’t control. For example, an employee could show up for work intoxicated or have a drink while on the job because she was unable to suppress the desire for a fix. This lack of control is important in determining if an addiction is truly a disability.

However, it can be difficult for employers to determine if an employee is addicted, particularly if it involves a drug such as marijuana. The effects of marijuana are generally considered to be not as serious as harder drugs or alcohol and cases of users losing complete control of themselves are not as common.

A long-time Alcan worker in British Columbia was caught smoking marijuana in the workplace and fired, since he worked with dangerous materials and machinery and the employer had a zero-tolerance policy towards drug and alcohol use in its safety-sensitive workplace. However, when he was let go, the worker claimed he had a “problem.”

The British Columbia Arbitration Board recently found the worker had an addiction to the drug. He was fully aware of the employer’s zero-tolerance policy, the potential danger of smoking marijuana in the workplace and made a conscious choice to do it anyway, but the board ruled his addiction influenced his choice, causing a moderate loss of control. This was enough, according to the board, to rate the marijuana addiction as a physical disability that had to be accommodated.

This raises some red flags for employers, as it might make it harder to fire employees who make conscious decisions to flout drug and alcohol use policies — and then claim addiction as an excuse.

While nobody would deny addiction is real, and can be a disability, this ruling (and other rulings on accommodating addiction related to substance abuse) raises a number of interesting questions: Are employees abusing the employer’s duty to accommodate disability to the point of undue hardship as a “get out of jail free” card when they’re caught? Or are employers simply being too hard handed and zealous in firing workers for using drugs in the workplace, bypassing things like progressive discipline and accommodation?

And if only a “moderate loss control” is considered a disability, how much culpability does the employee have in making the choice to use drugs at work?

For more information see:

Rio Tinto Alcan Primary Metal v. CAW-Canada, Local 2301, 2008 CarswellBC 3072 (B.C. Arb. Bd.).