Employers have a duty to consider and accommodate the
disabilities and medical conditions of their employees in the
course of their employment, but as Robinson v Edmonton (City)
demonstrates, this process is not one-sided: employees also have a
responsibility to engage in the accommodation process.
Susan Robinson was employed by the City of Edmonton as a bus
driver. She suffered from environmental urticaria, a severe allergy
that caused reactions such as hives and facial swelling when she
was exposed to fumes such as perfume or diesel. In order to treat
these symptoms, Ms. Robinson was required to take antihistamines,
which caused drowsiness and made it unsafe for her to carry out her
duties. As a result, she was often absent from work and went on
periods of short-term disability (STD) leave.
Following her latest STD leave, Ms. Robinson applied for
long-term disability (LTD) leave. In the review process conducted
by the LTD insurer, information came to light that Ms.
Robinson's medical condition could be accommodated if she were
to drive an LRT train, which may mitigate her exposure to fumes.
Her application for LTD was denied based on those grounds. There is
documentation to show that the City acted on the information from
the insurer and began pursuing the necessary arrangements to have
Ms. Robinson return to work as the driver of an LRT train.
Ms. Robinson spoke to her supervisor via telephone, and was told
she could appeal the denial of LTD, that a leave of absence pending
the appeal was possible, and that the LRT train option existed. The
supervisor did not insist that she attend his office in person,
require her to report for work, assign her a shift, or threaten
Following the telephone call, Ms. Robinson resigned.
Accommodation Process Not One-Way: Both Employers and Employees
The Human Rights Tribunal found that the City could have
provided clearer communication detailing its accommodation efforts,
but that the employee still knew or ought to have known that the
City wanted to pursue the LRT option, and that Ms. Robinson's
resignation effectively prevented the City from further fulfilling
its duty to accommodate. The Alberta Court of Queen's Bench
upheld the Tribunal's finding that Ms. Robinson elected to
abandon the accommodation process and found no failure of the City
to meet its duty to accommodate.
An employee seeking sick leave, STD, or LTD is also responsible
for participating in the accommodation process. While employee
resignations arising from a disability must be examined in the full
context of the employment, Robinson v Edmonton demonstrates that
the Court is wary of equating the duty to accommodate with a duty
to try to reverse a resignation.
Sensitive to Scents: Creating a Scent-Free Workplace
In certain instances, accommodation of medical conditions may
mean creating and enforcing a scent-free workplace. In addition to
requiring employees not to use perfume or perfumed products, it is
also important to ensure that other products provided by the
employer are not scented. Items commonly stocked in the workplace
such as soap, lotion, and air fresheners are frequently
Robinson v Edmonton demonstrates the severity of
scent-based medical conditions, and the safety concerns that may
arise for an employer whose affected employees operate machinery.
Although often trivialized, these conditions may have serious
consequences not only for the health of the affected employee, but
for the safety of others. As a result, employers should ensure they
are taking the necessary steps to accommodate affected
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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