Duty to Accomodate..What Does “Disability” Actually Mean?

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The law is clear that an employer is required to accommodate employees with a “disability” up to the point of undue hardship.  In most cases there is no dispute that the employee seeking accommodation is in fact disabled.  However, in some cases it is not entirely clear that the employee actually suffers from a disability which requires any accommodation at all. 

This issue was recently explored in a hearing before the Public Service Labour Relations Board, Riche v. Treasury Board.  The case related to an ongoing battle between the employer and the worker about his attendance record. The employer imposed reporting requirements on the worker with respect to when and how he was to advise his supervisor of any inability on his part to arrive at work on time, or at all.  The case primarily related to discipline imposed by the employer for failing to comply with these conditions.  The worker argued that the reporting conditions were arbitrary, constituted harassment that exacerbated his poor attendance record and failed to consider the various medical and emotional problems that he suffered from. 

The worker testified that he was depressed, stressed, suffered from sleep apnea or consumed alcohol too heavily on many occasions. He argued that the employer knew or should have known that he was suffering from those conditions and should not have imposed such strict reporting conditions.  The Adjudicator rejected the worker’s position and found that the worker was confusing an “ailment” with a disability.  The Adjudicator made the following comment about the threshold for establishing a disability requiring accommodation,

“The grievor’s submission also overstated the nature and extent of an employer’s duty to accommodate. As a general rule, the duty to accommodate arises for issues that an employee cannot control. A paraplegic cannot walk up stairs. An alcoholic cannot physically or psychologically resist the lure of alcohol. Such employees are not able to perform the tasks expected of them without outside help. That is the meaning of “disabled.” Hence, the duty to accommodate. But employers are not under a duty to accommodate issues that an employee is able to control. If the employee habitually sleeps through his or her alarm, then he or she must get a second clock, put their single alarm clock across the room where it cannot easily be reached or go to bed earlier. All those steps were within the grievor’s control. There was no evidence that he tried any of them. In the absence of such evidence, he could not establish that the reporting conditions were outside his control. And, if he could not do that, he could not establish that he was disabled from being able to give timely notices of his latenesses or absences.” (paragraph 132)

In this instance, the worker had not provided any evidence that he suffered from a disability to such an extent that he was unable to comply with the reporting obligations imposed by the employer.  It is important to appreciate that if the worker had led objective evidence that an actual disability prevented him from complying with his reporting conditions, the result would have been different. 

The decision also assists with understanding the threshold required to establish a disability.  As the adjudicator pointed out, every person who drinks too much alcohol is not an alcoholic.  Alcoholism becomes a disability when a person suffers from a diagnosed chronic condition causing that person to be unable to abstain from consuming alcohol excessively.  There are similar misconceptions that exist with respect to stress.  A certain level of stress is an inherent part of most jobs and experiencing stress does not mean someone is disabled.  However, there are many chronic mental health conditions triggered by stress which an employer is obliged to accommodate. 

The legal threshold for establishing whether an employee is disabled can sometimes be both legally and medically vexing.  Where does one draw the line between an individual who frequently likes to “party” by drinking alcohol excessively and an individual who suffers from the disability of alcoholism?  Employers should seek legal advice in situations where there is a question about whether an individual’s “ailment” will be considered a disability requiring accommodation.

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