We receive calls every week from dentists complaining about employees who are taking too many illness or disability related absences. Dentists are frustrated because in a small office the absence of even one employee can be incredibly disruptive. Ten percent of employees are unscrupulous and will abuse the right to take sick days. We also routinely encounter employees who are disciplined by the employer for not doing their job properly, and suddenly struck down with an undefined illness for an indefinite duration.
Employers cannot terminate employees on the basis of the employee taking time off due to illness. This is because under the Ontario Human Rights Code, the employer has a duty to accommodate the employee in respect of any disability.
The duty to accommodate is a troublesome issue that regularly arises for employers in dental practices. Whenever there are issues of attendance and efficiency, the question that often arises is, “can I dismiss this person?” The answer is invariably “it depends”. Whenever an employee is not performing to the standards required, or is missing shifts, an employer should never take steps to dismiss this employee without exploring the underlying reasons for the employee’s substandard performance or absences.
In our experience, the most frequent scenarios where this issue arises are when employees are sick and disabled, or when they are pregnant. Employers should be aware that the definition of “disability” under the Code is broad. Essentially any physical or mental impairment may constitute a disability. Pregnancy raises accommodation requirements on the basis of sex, as women are uniquely able to bear children.
Where an employee is experiencing difficulties performing or attending at work due to a medical condition, or pregnancy, the employer has the primary responsibility to offer and provide suitable accommodation to the employee. This duty is extensive.
Examples of typical accommodations are:
- Allowing an employee to work with modified duties;
- Allowing an employee to work with modified hours;
- Allowing an employee time to attend medical appointments;
- Allowing an employee breaks to sit and rest; and
- Allowing an employee a leave of absence.
The question for most employers then becomes, “how far do I have to go?”
The duty to accommodate is discharged once the employer has reached the point of undue hardship. This is a subjective term. The Code prescribes three considerations in determining undue hardship:
- Outside sources of funding, if any; and
- Health and safety requirements.
The relevant case law has added further considerations, but those considerations are typically subsumed within the three guiding principles outlined above. In terms of dental offices, the two most common considerations in dealing with accommodation issues are the cost and health and safety requirements.
The most common complaint we receive from employers when advising on the duty to accommodate is that it will result in a disruption to the employer’s business. The Guidelines published by the Ontario Human Rights Commission specifically state that business inconvenience, employee morale, and third-party preferences should not be considered as justifications to abdicate the duty to accommodate.
The case law holds that “…cost would amount to undue hardship only if it would alter the essential nature or substantially affect the viability of the enterprise responsible for the accommodation.”
Of specific importance to dental offices, which are typically small businesses, the Guidelines do indicate that employer size is a consideration that is encompassed under the “cost” consideration. Under this consideration, the employer is entitled to consider the ability of his workplace to adapt and implement the accommodation request.
A further reality with respect to the duty to accommodate is that employers must keep an employee’s job open until they return from their sick leave. This is also incredibly frustrating for dentist employers. Even if an employee is off for six months or a year as a result of a serious illness or injury, the employer cannot fire that employee. When that employee is ready to return to work, the employer must give them back their old job. The loss of employment while on a leave of absence can result in a human rights complaint. If this were to occur, the employee may be in a position to seek to be reinstated by the Ontario Human Rights Tribunal.
Overall, the cost must be quantifiable and cause hardship in relation to the size of the employer’s business. There is no objective standard employed to determine whether the cost of a proposed accommodation is prohibitive.
Health and Safety Risks
Further, health and safety risks to workers, clients or the public may be considered in determining undue hardship. This is particularly applicable in a dental office, where patient safety is paramount. A health and safety risk will amount to undue hardship if the degree or risk that remains after the accommodation has been made outweighs the benefits of enhancing equality for persons with disabilities. For instance, if a hygienist has developed a condition that affects her motor skills, the employer may not have to accommodate the hygienist by allowing her to continue to treat patients, if there is a real risk that patients will be harmed.
The relevant case law holds that while employers must try to accommodate employees, this does not mean the work place must be fundamentally changed. The employer is not required to maintain a disabled employee in a position that is not useful or productive in the context of its operations.
Discharging the Duty
Once it has been determined that a duty to accommodate does exist, employers must take steps to discharge the duty. Generally, the employer has the following obligations:
- Accept the request for accommodation in good faith;
- Obtain expert opinion or advice where needed;
- Take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation;
- Maintain confidentiality;
- Limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request;
- Grant accommodation requests in a timely matter; and
- Bear the costs of obtaining any required medical information.
Employers bear the primary responsibility in the process. However, employees also have a reciprocal duty in the accommodation process, in that the employees should work with the employer to find the appropriate accommodation. The duties of the employee can be summarized as follows:
- Advise the employer of the disability;
- Make her needs known to the best of her ability, so that the employer can accommodate the worker;
- Answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate;
- Participate in discussions regarding possible accommodation solutions;
- Cooperate with any experts whose assistance is necessary;
- Meet agreed-upon performance and job standards once accommodation is provided; and
- Work with the employer on an on-going basis.
All dentists will have received an employee sick note from a MD indicating the employee requires time off “until further notice for medical reasons.” The reality is that GP physicians will not act as the gatekeeper in order to ensure that employees do not take unwarranted sick days. Unfortunately, unless you have a written contract with the employee that allows you to obtain a medical note from the employee’s physician setting out the diagnosis and prognosis in respect of any medical absence, you have no right to insist that the employee advise you as to the nature of the medical issue. This legal reality is what leads to employee abuse of the right to take sick days.
However, the employer is entitled to request additional information from the employee when there is a concern over the adequacy of the documentation being provided in support of the accommodation request. The employee should cooperate with these requests. The duty to accommodate does not give employees permission to refuse to provide their employers with information about their ability to work with or without restrictions where there is a legitimate question about those issues. Nor does the duty to accommodate require an employer to tolerate an employee’s ongoing unsubstantiated absence from work.
The typical advice we provide to our dentist and employer clients is that they are not entitled to obtain more specific information about an employee’s absence; however, this doesn’t preclude a dentist from asking the employee why they are off sick. If the employee does not answer, then the dentist should not force the issue, as it will be considered the employee’s right to keep his or her medical status confidential.
The case law has held that it is unfair to expect an employer to impute and deduce a worker’s needs based on remote and scant knowledge. Employees are expected to waive some privacy considerations in order to open the accommodation dialogue. The duty to accommodate is not triggered simply because an employee makes a demand, and then breached because the employer failed to accede to the employee’s demand. The accommodation process is a two-way street. The employee must cooperate in the process and provide as much information as possible to facilitate the search for accommodation.
The employer is also entitled and obligated to address concerns of fitness for work. Further, after an employee returns, if there are concerns about her fitness for work, the employer is entitled to request further information to satisfy concerns that the employee is fit to work.
Employers are warned to be cautious with employees who are suffering from a disability. Steps should never be taken to discipline in any manner an employee who is suffering from health issues without first consulting a lawyer.
*The foregoing is not intended to be legal advice and is provided for educational purposes only. You should retain a lawyer to seek advice prior to taking any legal steps.