Taylor & Blair LLP was pleased to have one of our lawyers, Ben Tarnow, interviewed by CTV News for a story about his victory at the British Columbia Human Rights Tribunal for our client “K”.
Human Rights Violation
As discussed in October 19, 2022 the decision of the British Columbia Human Rights Tribunal, K began his employment in 2013 and was by all accounts a model employee until his struggles with addiction started to overwhelm his life. K was eventually diagnosed with a substance abuse disorder and a bipolar disorder. K was open and honest with his employer and explained his medical diagnoses and he went on long-term disability in late 2017 and entered into a substance abuse program.
K worked hard to treat his dual diagnoses and eventually received medical clearance to return to work in May of 2018.
Accommodating A Worker Returning From Disability
The British Columbia Human Rights legislation prohibits discrimination based on specified personal characteristics, or protected characteristics. The characteristics listed in the Human Rights Code are:
- Criminal Conviction
- Family Status
- Gender Expression
- Gender Identity
- Indigenous Identity
- Marital Status
- Mental Disability
- Physical Disability
- Place of Origin
- Political Belief
- Sexual Orientation
K’s substance abuse disorder and bipolar disorder classify as Mental Disabilities under the British Columbia Human Rights Code and as such his employer is prohibited from discriminating against him on those protected grounds.
K’s employer also had an obligation to accommodate K’s return to work to the point of undue hardship. Under the Human Rights Code an employer’s duty to accommodate an employees return to work after medical leave is a strong one. The employer needs to consider any step necessary to accommodate the return to work to the point of undue hardship.
Examples of the types of accommodations an employer has to consider under the duty to accommodate are:
- Changing their office location
- Ergonomic Assessment of their work space
- Making adjustments to their work space or equipment they use during their employment
- Reassigning an employee to a comparable post that better suits their needs
- Provide flexible hours
- Reserve a parking space close to the entrance or wheelchair ramp
What Is Undue Hardship?
The duty to accommodate is not absolute. It is limited if the employer can show that to accommodate that employee would be an undue hardship. Generally, to claim an undue hardship the employer would need to show that the accommodations required by the returning employee would be prohibitively expensive, create a difficulty or unsafe work environment. While the threshold of what is or isn’t an undue hardship varies depending on the specific facts of the situation, it is a high bar to meet for an employer.
What Happened in K’s Case?
In K’s case, his employer required that as a precondition for his return to work, K had to agree to a “last chance agreement” that included random drug tests over a period of two years, otherwise his employment would be terminated. This was humiliating and invasive and K asked for a consideration of other ways to accommodate his return to work. The employer refused to consider any alternative accommodation or meet with him to discuss the same and K was told to either agree to the offer or be terminated. K decided he would not agree to the random drug tests after he had already provided his employer medical clearance confirming his sobriety and ability to return to work and was eventually fired.
With the help of Taylor & Blair LLP K brought his case to the British Columbia Human Rights Tribunal and the member hearing the claim agreed that the employer failed in its duty to accommodate K’s return to work constituted discrimination under the British Columbia Human Rights Code.
You can see the CTV News article discussing the case here.