In United Nurses of Alberta v. Alberta Health Services (MacKinnon Grievance), [2023] A.G.A.A. No. 10 (Asbell), the majority of an arbitration board awarded $10,000 in injury to dignity (human rights) damages for an employer's failure to consistently and proactively accommodate a neurodivergent employee.
Background
The grievor was a registered nurse (RN) employed by Alberta Health Services (“AHS”). On a return to work from long-term disability leave, the grievor's struggles led to suspensions from employment which required reporting to the licensing body. Ultimately, AHS requested that the grievor undergo an independent medical examination (IME).
The grievor was diagnosed as “neurodivergent with associated memory, encoding, self-monitoring, attention, and concentration difficulties”. The recommended accommodations included that she receive written summaries of work-related discussions and repeat them back. These recommendations were included in an accommodation agreement.
AHS accommodated the grievor in a non-nursing, clerical position. She was assigned to a supportive manager who was aware of her accommodations, and she successfully held the position for a year.
The grievor then moved into a nursing position. Due to her suspensions and the subsequent conditions on her license, AHS had to evaluate her for the licensing body. She was successful in the nursing position for six months and management evaluated her positively. However, her manager retired and a new management team assumed supervision over her.
The grievor struggled with changes under new management, including changes to workspaces and performance-related communications. She informed management that she felt her accommodations were not being satisfied and requested meetings with management and the union. The new management team simply reviewed the accommodation plan and dismissed the grievor's concerns because her requests were not specifically included in that plan. The new team also considered it to be the responsibility of the grievor or union to follow up.
The grievor started having performance issues. In addressing those issues, the new management team did not follow the terms of the accommodation agreement, relying primarily on verbal coaching. The new team then evaluated the grievor as not meeting the standards required of an RN and her license was suspended, resulting in AHS suspending her employment without pay.
The union filed two grievances. The first related to the performance evaluation and was dismissed. The second grievance alleged that AHS had breached its duty to accommodate.
AHS took the position that it was not required to apply terms not contained in the accommodation agreement and also that it had followed the terms of the agreement. The union argued it was incumbent on management to inform itself about the grievor's accommodation needs and proactively address those needs.
Analysis
The majority of the arbitration board agreed with the union and concluded that AHS had failed to accommodate the grievor following the change in management. The majority relied on the following principles:
- Employers have a positive obligation to reasonably accommodate
disabled employees in the workplace short of undue hardship. To
satisfy that duty, employers must:
- be attentive and respond to the employee's disability-related needs;
- take steps to understand what accommodations are required;
- monitor and adjust accommodations as or when necessary; and
- do everything reasonable or practicable to accommodate the employee in the workplace.
- Special care must be taken for employees suffering from mental disabilities, especially where the employer has some knowledge of the disability and understands that certain actions may negatively affect the grievor.
While the original management team had accommodated the grievor successfully, the new team had failed in its duty in several ways, including:
- dismissing the grievor's repeated statements that her accommodation needs were not being met without sufficient investigation and follow-up;
- placing responsibility on the grievor or union to proactively follow up with respect to accommodation; and
- failing to consistently apply the accommodation agreement, particularly with respect to how performance issues were managed.
Notably, AHS' own processes required managers to regularly meet and follow up with the employee to ensure that the accommodation remained suitable. That was clearly not done.
Ultimately, the majority of the arbitration board found that AHS had failed to accommodate the grievor. That had contributed to her loss of her licensing status and her unpaid leave of absence. As a result, the majority awarded $10,000 in injury to dignity damages and an undetermined amount of lost wages and benefits.
Takeaways for Employers
- Accommodation, particularly of neurodivergent or other mental health conditions, is an ongoing employer responsibility which requires the employer to be proactive.
- Where the workplace or job responsibilities change, employers should be alert to the possibility that the need for accommodation may change.
- Managers responsible for implementing and overseeing accommodation plans should be aware of: (i) the duty to accommodate; (ii) the specific accommodation plans that are in place; and (iii) the purpose of such plans.
- Because accommodation is an ongoing process, employers should not ignore requests for accommodations from employees simply because those accommodations are not part of the current plan.
Previously published by LexisNexis Labour Notes Newsletter.
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