Why med­i­cal spe­cial­ist lost hu­man rights chal­lenge

The Hamilton Spectator - - BUSI­NESS - Ed Can­ning prac­tises labour and em­ploy­ment law with Ross & McBride LLP, in Hamil­ton, rep­re­sent­ing both em­ploy­ers and em­ploy­ees. You can email him at ecan­ning@rossm­cbride.com.

Among many other things, hu­man rights codes across the coun­try pro­hibit dis­crim­i­na­tion in em­ploy­ment on the ba­sis of a dis­abil­ity.

If an em­ployee can­not per­form all as­pects of their job, the em­ployer has to find a way to ac­com­mo­date them.

The only de­fence avail­able to the em­ployer is to es­tab­lish that: 1) the task the em­ployee can­not do is a rea­son­able and bona fide part of the job; and 2) it would be an un­due hard­ship on the em­ployer to ac­com­mo­date that lim­i­ta­tion.

This can be a very dif­fi­cult test for the em­ployer to meet. As a re­cent New Brunswick case shows, how­ever, it’s not im­pos­si­ble.

A urol­o­gist, to whom we will re­fer as Shivago, worked at the lo­cal hos­pi­tal for many years.

The deal was al­ways that the four urol­o­gists there would share the avail­able oper­at­ing room time, one of the pri­mary ways they achieved their billings, and also share the on­call evening shifts.

Some­body had to be avail­able to deal with post-op­er­a­tive care and other emer­gen­cies.

In many re­spects, it was a deal be­tween the four as much as it was a deal be­tween them and the hos­pi­tal. Each had a pro­fes­sional obli­ga­tion to pro­vide fol­lowup care and emer­gency care to their pa­tients but, of course, no one wanted to be on call all the time. So they shared.

Af­ter many years of this ar­range­ment, Shivago started to have health prob­lems and in­di­cated that as of a few months later, on his 65th birth­day, he was no longer go­ing to do on-call as a re­sult of those is­sues.

The depart­ment head told him if that was the case, his avail­able time to be sched­uled in the oper­at­ing room would be de­creased. Shivago’s col­leagues were not pre­pared to com­mit in­def­i­nitely to in­creased on-call time to cover for him.

Shivago filed a com­plaint with the Hu­man Rights Com­mis­sion, and the mat­ter went to a hear­ing. He claimed he had been dis­crim­i­nated against on the ba­sis of his dis­abil­ity and that the em­ployer had failed to ac­com­mo­date him to the point of un­due hard­ship. He said the hos­pi­tal should not have de­creased his oper­at­ing-room time just be­cause his health would not al­low him to do the on-call work.

The pri­mary fac­tual re­al­ity that drove this case was that in New Brunswick — and, I would think, across the coun­try — there are no fully-trained urol­o­gists sit­ting around wait­ing for a few hours of work. Hos­pi­tals have to re­cruit them, and part of that process is promis­ing them a rea­son­able amount of time in the oper­at­ing room in a very lim­ited sched­ule.

Shivago wanted to keep his oper­at­ing time but not the on-call work. Re­cruit­ing a trained urol­o­gist and telling them they have to do on-call work but will not get much in the way of billings in the oper­at­ing room would be al­most im­pos­si­ble.

The Hu­man Rights Com­mis­sion had no trou­ble find­ing that do­ing on-call time was a bona fide, le­git­i­mate, part of the job. Given the scarcity of the skill set, such ac­com­mo­da­tion would have been an un­due hard­ship. Re­quir­ing Shivago’s hos­pi­tal and col­leagues to al­low him the OR time with­out the on-call time would have put an in­cred­i­ble bur­den on his col­leagues.

Be­fore any em­ploy­ers read­ing this try to analo­gize to a sit­u­a­tion they may be fac­ing, con­sider that these are rar­efied cir­cum­stances.

Most of us are fairly re­place­able. Not to di­min­ish any­one’s pro­fes­sion, but by com­par­i­son, if you have 10 ap­pli­ance re­pair peo­ple work­ing for you and one can­not do af­ter­hours calls for health rea­sons, that would be quite dif­fer­ent. There are more peo­ple to spread the work around, and even if there were not, you would have to prove that it was im­pos­si­ble to find qual­i­fied ap­pli­ance re­pair peo­ple to fill in.

A fact-finder would ex­pect that the po­si­tion was ad­ver­tised ex­ten­sively and no qual­i­fied ap­pli­cants ap­plied.

Hav­ing passed that hur­dle, the em­ployer would have to prove that there was, or was go­ing to be, sig­nif­i­cant eco­nomic im­pacts for the com­pany, and not just a mar­ginal loss of profit. That is eas­ier to es­tab­lish if it is a small op­er­a­tion.

There is no per­fect an­swer or per­fect way to deal with ac­com­mo­dat­ing an em­ployee who can­not do all, or any of the job for a cer­tain pe­riod. In­evitably, it im­pacts the peo­ple that work with them.

If you are one of those peo­ple left be­hind car­ry­ing the load, try to put your­self in the dis­abled per­son’s shoes.

Then be grate­ful that you are not ac­tu­ally fill­ing them.


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