Asthma attacks and allergic reactions in the workplace are an HR nightmare, especially when they’re caused by the victim’s co-workers. These situations generate not just recrimination and bad feelings but tricky legal questions:
- Is the asthma/allergy a disability requiring accommodations?
- If so, how do you accommodate an employee who can’t tolerate being with or near a co-worker?
The good news is that a recent Ontario case sheds light on these issues; the bad news is that the case is a hard pill for employers to swallow.
Sept. 1: On her second full day on the job, an environmental analyst has an asthma attack. She blames it on cat dander from a co-worker’s clothing. The supervisor and office manager take the matter seriously and follow up repeatedly over the next 4 weeks.
Sept. 2 to 26: Although things seem to be quieting down, the situation is actually getting worse. Although she’s remained largely quiet, the analyst is growing increasingly unhappy. Her asthma problems continue. She’s asked the co-worker she thinks is causing the problems to use email and stay away from her cubicle but the request has been ignored. Meanwhile, management is becoming disenchanted with her attitude and performance.
Sept. 27-29: The analyst writes a long email airing her complaints and asking management to keep the co-worker from coming to her desk. But management isn’t persuaded that the co-worker is causing the problems and offers an alternative accommodation: The analyst can either work from home or move to an isolated office. She reluctantly opts for the latter but that only intensified the negative personal dynamic.
Oct. 30: The analyst is terminated for poor performance. She contends that requesting an accommodation is the real reason for termination and sues the firm for disability discrimination.
What the Tribunal Decided: The Ontario Human Rights Tribunal issues a split decision:
- The analyst was terminated for non-discriminatory reasons; but
- The firm didn’t accommodate her and had to pay $7,500 in damages for injuring her dignity and self-respect.
How the Tribunal Justified the Decision: The Tribunal made 3 important points:
The Analyst Had a Disability: The mere fact that the analyst had asthma didn’t mean she was “disabled” under human rights laws. But, the Tribunal continued, the asthma in this case was a disability because it imposed functional limitations. So the analyst was entitled to reasonable accommodations.
The Firm Didn’t Accommodate Her: To meet their accommodations duties, employers must respect the employee’s dignity. The firm’s initial actions measured up to these principles. But it was in responding to the Sept. 27 email where things took a wrong turn. While agreeing that an accommodation was in order, the firm simply brushed aside the analyst’s idea of talking to the co-worker about an “I’ll-go-to-her-desk-but-she-shouldn’t-come-to-mine” approach. Instead, it offered only alternatives that would isolate her from colleagues. The smoking gun: An internal email suggesting that isolation was exactly what management had in mind.
The Termination Was Legitimate: Poor relations with colleagues weren’t the analyst’s only issue. The expectation was that she’d assume responsibility immediately; but instead of getting out of the gate fast, she struggled and complained about being asked to do too much too soon. Whether accurate or not, the concerns were sincere and not a “pretext” for terminating her because she requested accommodations, the Tribunal concluded.
Hayes v. R.J. Burnside & Associates Ltd., 2017 HRTO 790 (CanLII), July 5, 2017
The first takeaway is that asthma and allergies are deemed “disabilities” requiring accommodations to the extent they interfere with an employee’s ability to do the job. The firm in Hayes understood this. In fact, it had a sophisticated, well-informed HR operation with a keen understanding of and experience in the accommodations process. What makes the case such a hard pill to swallow is that the firm still got into trouble.
The root cause of all the problems was how the analyst’s interpersonal and performance problems became “conflated” with her accommodations request. In her mind, it was all one and the same and all of the firm’s legitimate concerns became pretexts to get her out the door as quickly as possible.
The reason the firm got into trouble was that it fell into the same trap to the point where isolation wasn’t so much an accommodation as a way to tune her out. Compounding the error was the series of adverse actions taken shortly after, such as removing her from a job, not inviting her to meetings and, most damning of all, having colleagues keep logs of her work so it could document her poor performance.
The inevitable result: The dismissal that followed looked like the culmination of a careful plot. And even though the discriminatory termination argument ultimately failed, it was enough to spur the analyst to bring the case in the first place and the Tribunal to award her $7.5K worth of damages.