"Not every ailment amounts to a disability", an adjudicator has held, in dismissing an employee's grievance. Employers who often wonder what types of ailments or conditions amount to "disabilities" will find this decision interesting.
The employee had an erratic attendance record. The employer imposed reporting requirements on the employee as to when and how he must report to his supervisor if unable to arrive at work at all or on time. The employee breached those conditions and was disciplined. The employee then filed grievances challenging the discipline and alleging that the conditions were unfair, constituted harassment, and failed to take into account his sleep apnea and drinking problem.
The adjudicator held that the employer, faced with the employee's poor attendance record, which was a departure from the norm, was entitled to impose the reporting requirements.
The adjudicator went on to state that the employee's sleep apnea and drinking patterns did not amount to a disability. The adjudicator's comments are interesting:
"130 The difficulty is that the grievor's argument confuses an ailment with a disability. Depression and stress are commonly experienced by many people in the course of their working lives. Neither is, by that fact, disabling. The same can be said of sleep apnea. The fact that one experiences such conditions does not establish a prima facie case of disablement or, all the more so, a prima facie case of discrimination based on a disability. Needed in this case was evidence that the conditions were so bad that they disabled or at least limited the grievor's ability to comply with the reporting conditions. But the grievor offered no such evidence other than the conditions themselves.
"131 The importance of managing attendance is not eliminated by the mere assertion that one has an illness. Not every physical or emotional ailment amounts to a disability requiring accommodation. Some ailments – such as depression, emotional stress or headaches or, in Mr. Riche's case, sleep apnea – may impact a person's life without necessarily making it impossible for them to comply with the usual expectations of working life. For example, depression may be mild, moderate or totally disabling. The severity of its impact will depend upon the severity of the cause, the person's psychological makeup and the steps he or she takes to combat it. It is not a sufficient excuse on the part of an employee to justify his or her repeated tardiness or frequent absences by saying, "I'm depressed", or, "I had a headache." Something more is required to enable the employer to know that the ailment is truly disabling, that is, something beyond the control of the employee as opposed to simply an excuse. In part, that is the reason the jurisprudence emphasizes the obligation on the part of the employee seeking accommodation to explain the nature of the problem and to co-operate in its treatment. Without such an explanation, the employer has no way of knowing whether the ailment is severe enough to amount to a disability or what to do about it by way of an accommodation if so required."
The adjudicator went on to state that employers are not required to accommodate "issues that an employee is able to control". Here, the adjudicator held that the employee was able to control his problem with sleeping in – for instance, by putting his alarm clock on the other side of the room. Also, the grievor's statements that he was a "heavy drinker" and a "happy drunk" were not enough to establish that he was an alcoholic, particularly when he stopped short of calling himself an alcoholic and did not call evidence from his family doctor.
As this case demonstrates, not every health condition will be a disability, and the mere assertion by an employee that he has a health issue may not be enough , in every case, to require the employer to accommodate.
Riche v. Treasury Board, 2013 PSLRB 35 (Public Sector Labour Relations Board, April 19, 2013)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
About Dentons
Dentons is a global firm driven to provide you with the competitive edge in an increasingly complex and interconnected marketplace. We were formed by the March 2013 combination of international law firm Salans LLP, Canadian law firm Fraser Milner Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly regarded law firms. Each built its outstanding reputation and valued clientele by responding to the local, regional and national needs of a broad spectrum of clients of all sizes – individuals; entrepreneurs; small businesses and start-ups; local, regional and national governments and government agencies; and mid-sized and larger private and public corporations, including international and global entities.
Now clients benefit from more than 2,500 lawyers and professionals in 79 locations in 52 countries across Africa, Asia Pacific, Canada, Central Asia, Europe, the Middle East, Russia and the CIS, the UK and the US who are committed to challenging the status quo to offer creative, actionable business and legal solutions.
Learn more at www.dentons.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author.