2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
The Right Person For The Job: Nova Scotia Human Rights Board Finds Duty to Accommodate Prospective Employees
It is by now widely understood among employers across Canada that there is an obligation to accommodate employees with disabilities to the point of undue hardship. What is perhaps less understood, however, are the obligations which arise when a prospective employee requires accommodation in order to succeed in a vacant position.
A recent decision by a Nova Scotia Human Rights Board of Inquiry in Yuille v Nova Scotia Health Authority, 2017 CanLII 17201 (NS HRC), offers another reminder of the expansive nature of the duty to accommodate and sets out specific limitations on that duty in case of prospective employees.
The complainant, Melanie Yuille, was a registered nurse who had been employed for a number of years with the Capital District Health Authority (“CDHA”), the predecessor to the respondent Nova Scotia Health Authority (“NSHA”). During her employment with the CDHA, Ms. Yuille began suffering from epileptic seizures, while also battling a sleep disorder. Despite treatment, she struggled to work in the two-day, two-night rotating shift schedule utilized for nursing staff of the CDHA, and ultimately resigned her employment to take a position with a private long-term care facility where the schedule was more flexible.
After several years of employment in private care, and with her epilepsy and sleep disorder largely under control, Ms. Yuille became concerned that her acute care skills were eroding. In early 2015, she applied for a vacant nursing position with the new NSHA and was interviewed shortly thereafter. While the NSHA’s rotating shift schedule was discussed during her interview, Ms. Yuille did not disclose that it was likely she could not work such a schedule given her need for consistent sleeping patterns.
Pleased with the interview, the NSHA ultimately made an offer of employment conditional upon Mr. Yuille completing a questionnaire concerning her health status and receiving the approval of the NSHA Occupational Health physician. It was on this questionnaire that Ms. Yuille first disclosed that she suffered from epilepsy and a sleeping disorder.
After review, the Occupational Health physician for the NSHA approved Ms. Yuille for work with two conditions: that her shift schedule not rotate between days and nights any more frequently than once every six weeks, and that she work only occasional night shifts.
Despite approval for work with conditions, the NSHA thereafter rescinded its job offer. Ms. Yuille filed a complaint with the Nova Scotia Human Rights Commission claiming that the NSHA had failed to accommodate her disability to the point of undue hardship.
Duty to Accommodate Prospective Employees
The Human Rights Board of Inquiry found that the NSHA had failed in its duty to accommodate Ms. Yuille. Despite the fact that she was not yet employed by the NSHA at the time, the Board confirmed that the duty to accommodate extended beyond those currently employed to include prospective employees. In Ms. Yuille’s case, there was no dispute that she was fully qualified for the position – the only basis for the rescindment of the offer of employment was her need for accommodation. A prima facie case of discrimination had therefore been established.
The Board further rejected that the specific rotating shift schedule utilized by NSHA nursing staff was a bona fide occupational requirement – rather, it was simply an established practice. Nor did the Board accept that the NSHA, one of the largest employers in the province, would suffer undue financial or administrative hardship if Ms. Yuille were accommodated with a days or nights-only shift schedule.
However, despite recognizing that employers have a duty to accommodate prospective employees, the Board also held that the extent of this duty is not as extensive as it would be for current employees. Whereas current employees requiring accommodation are entitled to have their employer consider whether alternative positions within their organization could suit their needs, prospective employees do not enjoy the benefit of such an extensive search. For this group, the Board held that an employer must only consider accommodation within the specific position applied-for. Otherwise, the applicant would enjoy preferential treatment in the provision of employment, rather than equal access.
As the NSHA was found not to have met even this lesser standard, no undue hardship had been demonstrated, and Ms. Yuille was awarded special damages for lost wages and general damages of $15,000. The Board also ordered that Ms. Yuille be offered the next available nursing position into which she could be accommodated.
Takeaway for Employers
This case should serve as a reminder that the duty to accommodate is expansive – and will include applicants for vacant positions. Where an applicant is otherwise qualified for a position, in that they are able to perform all of the bona fide occupational requirements, there will arise a duty to explore accommodating that prospective employee by modifying other requirements of the position. The obligation to accommodate in this context, however, will not require the employer to consider whether other positions will be more suitable for the applicant.
When issues of accommodation arise, it is recommended that employers consult with legal counsel before assuming their obligations to accommodate have been satisfied. In the ever changing world of accommodation law, it is better to be safe than sorry.