One of the first decisions issued by the Alberta Human Rights Tribunal in 2020 offers an important reminder in regards to an employer’s duty to accommodate. The decision of Salazar v J.S.L. Investments Corporation (“Salazar“), emphasizes that employers must take sufficient steps to understand an employee’s disability-related needs to satisfy the procedural aspect of the duty to accommodate.
In Salazar, the complainant employee was a dental assistant who had worked for the employer for approximately two years. The employee suffered a major depressive disorder, which led to her being hospitalized. Following the employee’s discharge from the hospital, she attended a day program for about a month. The employee then reached out to the employer by text message and asked to return to work on a two-day per week basis. In response, the employer contacted the employee’s psychiatrist directly (with the employee’s approval).
The Tribunal found that notes made by the employer in preparation for the call with the employee’s psychiatrist indicated that the employer had decided to terminate the employee’s employment prior to the call and before any medical evidence about the complainant had been obtained. The Tribunal also found that the purpose of the employer’s telephone call with the employee’s psychiatrist was to obtain help in conveying the termination message to the employee. Following the telephone call with the psychiatrist, the employer terminated the employee’s employment by text message.
The complainant filed a human rights complaint alleging that she was terminated as a result of her mental disability and that the employer had failed in its duty to accommodate her disability.
The scope of the duty to accommodate was an issue argued by the parties before the Tribunal. The Tribunal found that the law establishes that there is a procedural aspect as well as a substantive aspect of the legal duty to accommodate. The procedural aspect of the duty to accommodate requires the employer to inquire about an employee’s restrictions and to assess what accommodation is possible. The substantive aspect requires the employer to actually provide reasonable accommodation to the point of undue hardship.
In Salazar, the Tribunal concluded that the respondent failed in both aspects of the duty to accommodate and that it was therefore not possible for the employer to establish undue hardship. In regards to the procedural aspect of the duty to accommodate, the Tribunal noted that the employer did take some steps, including considering what alternative accommodation efforts might be, before deciding to terminate the employee’s employment. However, the Tribunal found these steps to be insufficient. As explained by the Tribunal:
- […] the respondent failed to satisfy the procedural aspects of the duty to accommodate because, as part of that duty, he should have communicated with the complainant to understand more about the accommodation request that was being made and, specifically, how long the two day per week arrangement was likely to last and whether it was medically required. I recognize that [the employer] chose not to call the complainant […] but it would have been very easy […] to communicate with the complainant by text, to find out more about the accommodation request which was being made. Instead, [the employer] asked if [it] could speak to the complainant’s doctor and then made [its] mind up about terminating her employment for reasons relating to her disability, before speaking to the doctor.
-  I find that the failure to find out more information about the complainant’s request for accommodation constitutes a failure in the procedural aspect of the duty to accommodate.
Employers must be aware that the procedural component of the duty to accommodate requires them to take steps to understand the employee’s disability-related needs and to investigate potential accommodation measures.
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by Albert Nolette