Taylor & Blair LLP fights hard for our client’s rights when they’ve been denied their life insurance, critical illness insurance, or long-term disability insurance benefits. Every once in a while, we also find ourselves helping our clients in their return to work from long-term disability leave.
Our client “K” was on long-term disability due a substance use disorder and a bipolar disorder. After working hard to treat substance abuse disorder and bipolar disorder, and after completing a treatment program for addiction and receiving medical clearance to return to work K contacted his employer to arrange a return to work.
CTV News reached out to Ben Tarnow of Taylor & Blair LLP, the lawyer who conducted the hearing to get his views on the case. You can read the article here.
What Is The Duty To Accommodate a Return To Work?
When someone has fought hard to recover from a disability to the point where they can return to work, like our client K, an employer has a duty to accommodate a return to work by making accommodations to facilitate a return to work.
This means that if the employer needs to adjust company practices or policies, or make other accommodations to allow the employee with a disability to return to work, they must do so, subject to an undue hardship. Common examples of accommodating an employee with a disability are providing a reserved parking space, providing adjustments to work spaces and related equipment, providing flexible hours, or reassigning the employee to a new position. The duty to accommodate is based on Human Rights legislation and the prohibition for discrimination.
The duty to accommodate is a heavy burden and the only way an employer can discharge their duty to accommodate is if they can show that steps required to accommodate the employee would cause the employer an undue hardship which is a very high bar to meet.
What Do You Do If Your Employer Discriminates Against You Because Of Your Disability?
As with our Client “K’s” case, if your employer discriminates against you because of your disability, you can take your case to the Human Rights Tribunal and argue that your rights have been discriminated against as a protected ground.
In May 2018 K had sought to return to work after leaving on long-term disability in October 2017. His employer told him he couldn’t return to work unless he agreed to submit to 24 random drug tests over a two-year time frame. As his medical clearance had already confirmed K’s sobriety and clearance to return to work, K objected to this as being discriminatory. K sought alternative accommodations that weren’t as intrusive and demeaning, but the employer refused to consider any alternative arrangement or meet with him and eventually terminated K’s employment.
The lawyer’s at Taylor & Blair LLP brought a claim in the British Columbia Human Rights Tribunal claiming that K was discriminated against due to his disability. After a long trial and written submissions, the British Columbia Human Rights Tribunal member hearing the case, Beverly Froese, found that K’s rights had been discriminated against and that his employer had failed to meet their duty to accommodate K’s return to work to the point of undue hardship. The British Columbia Human Rights Tribunal’s decision affirmed that there is no single approach when it comes to accommodating employees with disabilities in their attempts to return to the workplace.