Accommodation Requires More Than Insisting On A “100% Fit” Employee

Previously printed in the LexisNexis Labour Notes Newsletter.

In Gbedze v. Hilton Vancouver Metrotown, 2025 BCHRT 225, the B.C. Human Rights Tribunal (the “Tribunal”) found that an employer discriminated against an employee with a physical disability by failing to meaningfully explore accommodation options beyond his pre-injury role, effectively requiring him to be “100% fit” before returning to work.

Background

Mawunyo Komla Honore Gbedze (the “Worker”) is a refugee from West Africa.  He worked as a Second Cook at the Hilton Vancouver Metrotown (the “Employer”) for approximately 17 years before he suffered a serious knee injury at work in November 2018.  Following surgery and an extended medical leave, he sought to return to work in late 2019 after his employment insurance (EI) and short-term disability benefits were exhausted.

At a November 2019 meeting, the Worker suggested that he could return in a modified capacity, including by performing lighter duties while seated.  However, the Employer focused on whether he could return to his pre-injury Second Cook role through a gradual return to work (“GRTW”) program based on modified hours rather than modified duties.

The Employer advised the Worker’s physician that its GRTW program was based on modified hours and that the Worker would be returning to work “in the same role”.  The physician subsequently advised the Worker could not return to work as a chef because of the medical limitations or restrictions affecting his knee.

Although the Worker repeatedly expressed a desire to return to work in some capacity, the Employer continued requesting medical information related only to his ability to resume his Second Cook duties.

Decision

The Tribunal found that the Employer discriminated against the Worker on the basis of physical disability contrary to s. 13 of the Human Rights Code, R.S.B.C. 1996, c. 210.

The Tribunal held that while the Employer initially took a reasonable first step by exploring a gradual return to the pre-injury Second Cook role, its accommodation efforts became unreasonable after medical evidence established that the Worker could not return to that role.  At that point, the Employer had a duty to explore other reasonable accommodations, including modified duties and alternative positions within the hotel.

The Tribunal found that the Employer failed to seek the medical information necessary to assess the Worker’s broader functional abilities and limitations or restrictions, or determine whether he could perform other work.  Instead, the Employer remained singularly focused on whether the Worker could return to his pre-injury role.  The Tribunal concluded that this effectively communicated that the Worker needed to be “100% fit” before returning to work.

The Tribunal noted that the Employer operated a full-service hotel with a range of positions that it could have explored for the Worker.  Unlike a restaurant or small kitchen where all available positions might require employees to stand for their entire shift, the Employer had other potential accommodation options available.

The Tribunal also rejected the Employer’s argument that the Worker frustrated the accommodation process by failing to provide additional medical information.  The Tribunal held that the Employer’s requests were themselves unreasonable because they repeatedly focused on a position which the medical evidence already showed he could not perform.  The Employer at that point bore the responsibility to seek other relevant medical information and propose reasonable accommodations but failed to do so.

The Tribunal awarded the Worker $16,617.91 for lost wages and $32,000 as compensation for injury to dignity, feelings and self-respect (“ITD”).  In assessing the amount of the compensation for ITD, the Tribunal considered the Worker’s vulnerability as a refugee, his lengthy employment relationship with the Employer, his financial hardship, and the emotional impact of losing his employment and income.

Takeaways

• Employers cannot require employees to be “100% fit” before returning to work or limit accommodation efforts to an employee’s pre-injury role where the medical evidence demonstrates that role cannot be performed. If an employee cannot perform the original position, employers must meaningfully explore modified duties and alternative positions.
• Employers must seek appropriate medical information about an employee’s functional abilities and limitations or restrictions. It is not enough to limit the inquiry to the question of whether the employee can perform the original job if the available medical information establishes that job can no longer be performed.  Employers must at that juncture obtain the information necessary to assess broader accommodation options.
• The primary responsibility for investigating accommodation options rests with the employer. An employer cannot argue that an employee frustrated the accommodation process where the employer failed to request the information required to evaluate reasonable accommodations.

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.