Articles of Interest

Medical Discharge and the Duty to Accommodate in the RCMP

by Norman Sabourin, Executive Director and Senior Counsel
March 2002

Police work is sometimes very arduous. The demands of the job can cause injury or impairment over a long period of time. Even more serious are the dangerous situations faced by police, which sometimes result in serious injury for members. What happens when a member is no longer able to perform the duties of their position because of a medical or mental condition?

Pursuant to the RCMP Act and Regulations, a member can be discharged from the Force by reason of physical or mental disability. The Regulations provide that the member must be given a written notice explaining the process to be followed in seeking that member's discharge. Unless there is an agreement to the contrary by the member, a medical board must be convened. It consists of at least three medical practitioners; the member can nominate his or her own physician to the board. The medical board must determine the degree of the member's impairment and report its findings and recommendations to the appropriate officer and to the member. In accordance with the Commissioner's Standing Orders (Representation), 1997, the member is entitled to be assisted by a Member Representative, who is a lawyer paid for by the RCMP.

Some questions that can be asked about this process are: At what point is a member so impaired that they should be dismissed? Should all members be required to perform each and every task that can be assigned to a general duty constable? Is the Force required to take special measures to take a member's impairment into account? What information is relevant in deciding such issues?

Some of these questions have been the subject of much debate in recent years, particularly in the context of human rights legislation and the Canadian Charter of Rights and Freedoms. Recently, the Supreme Court of Canada has clarified what obligations exist for employers in relation to employees who have a disability.

The Meiorin Case

The key decision that explains the duties of employers is the Meiorin case (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3), decided by the Supreme Court in 1999. Ms Meiorin was a forest firefighter employed by the government of British Columbia. She performed her duties well and received satisfactory performance evaluations. After three years on the job, she failed part of a test that had been implemented to measure the aerobic capacity of firefighters. The test had been devised following a recommendation made by government researchers, on the basis that forest firefighters should be in good physical shape in order to maintain their own safety and that of their colleagues.

After Ms Meiorin failed part of this physical test, she was informed that she would be discharged from her position for failing to meet a legitimate occupational standard. This decision was challenged by her union, all the way to the Supreme Court of Canada.

In reviewing the case, the Court reviewed what had been done to date in analyzing discrimination issues, and decided that a new approach was needed to give full effect to the intent of human rights legislation. The test developed by the Court has now become the norm for analyzing serious allegations of discrimination in the employment field.

The Court found that employers have a right to set standards for occupations, but if a standard seems on its face to be discriminatory, employers must show that the standard is a "bona fide occupational requirement" or "BFOR." To do this, the Court set a three-part test. First, the standard must be rationally connected to the performance of the job; second, the standard must have been adopted in good faith, in the belief that it was necessary for the fulfilment of the purpose or goal; third, the standard must be necessary to accomplish the duties of the job. It must be shown that it is impossible, without imposing undue hardship on the employer, to accommodate an individual employee who is excluded by the standard because of their personal condition.

The three-part test developed by the Supreme Court requires that an employer bring forward evidence to defend its position that an occupational standard constitutes a BFOR. The employer must do so for each of the elements of the test.

The first element is that the standard must be rationally connected to the performance of the job. Here, the employer must explain what the standard is designed to achieve and show that there is a rational relationship between the standard and the desired objective. Often, the standard is aimed at promoting safety or efficiency in the work- place. The Court explained that, in most cases, it is simple to show such a rational connection. The employer simply must show a legitimate reason for the general objective it seeks to achieve. However, there must be evidence presented. For example, in the Meiorin case, the Supreme Court was not convinced that there was a rational connection between the physical fitness standard and the safe and efficient performance of the duties of a firefighter: 

"There was no credible evidence showing that the prescribed aerobic capacity was necessary for either men or women to perform the work of a forest fire- fighter satisfactorily. On the contrary, Ms. Meiorin had in the past performed her work well, without apparent risk to herself, her colleagues or the public."

Second, the standard that has been chosen must be necessary to accomplish the duties of the job. What the Court said is that it must be shown that the standard was adopted because the employer honestly believed that it needed this standard in order to get the job done, and that the standard was not adopted for some other reason. Some key questions that could be asked at this stage are: In what circumstances was the standard or policy adopted? Was it created to respond to a specific problem? Who adopted it and how was it put in force? How was the standard or policy developed? These questions can show that an employer legitimately was trying to find ways to ensure that the required duties of a position are carried out. On the other hand, if a standard was adopted with other objectives in mind, it will fail this part of the test.

The final and third element of the test requires the employer to show that it is impossible, without undue hardship, to accommodate an individual employee who is excluded by the standard because of their personal condition. This is the most challenging part of the test and it places a significant onus on the employer, who must basically demonstrate the degree of hardship that would result from providing a job, inside the organization, for the employee.

Here the Supreme Court explained that an occupational standard must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. In other words, the employer must focus on how an employee can continue to play a productive and meaningful role in the organization, not on why an employee is incapable of performing to the ideal standard.

Some key questions that can be asked at this stage are: Did the employer look at alternative standards to get the job done? Is the standard properly designed in order to minimize the burden on those required to meet it? Does the standard itself provide for individual accommodation in some cases? Is it essential that all employees meet the occupational standard for the employer to accomplish its goals?

In that last instance, information about the treatment of other employees placed in similar situations may be critical in establishing whether or not accommodation is possible. Indeed, if an employer has accommodated other employees in the past, it will be much more difficult to successfully argue that further accommodation is impossible. To that end, access to information held by the employer may be essential to the analysis.

Again, the onus is on the employer to present evidence. The nature of the evidence must be serious and persuasive in nature. The evidence would usually be statistical, medical or presented by experts. The courts have said that evidence based on "common sense," assumptions or impressions will not be sufficient.

Finally, the employer must show what actions it took to try and accommodate the employee or, in the alternative, why it is simply not possible to accommodate the employee within the organization.

The extent of the duty to accommodate

The test developed by the Supreme Court requires a case-by-case approach in situations of alleged discrimination. In examining different situations, recent decisions of lower courts and labour arbitrators do help to draw some parameters and give guidance on the scope of the duty to accommodate.

In Re Cape Breton Health Care Complex and Canadian Auto Workers, Local 4600 (90 L.A.C., 4th, 403), an arbitrator reviewed the situation of a lab technician who, after receiving cancer treatments, developed post-traumatic stress disorder. This made it very difficult for him to take blood samples from patients at the clinic, which was a central part of his work. To address the situation, the employer first gave him part-time work, and eventually moved him to another job that did not require him to take blood samples but that paid $5.00 less an hour than before. The adjudicator found that this did not meet the duty to accommodate and that "moving an employee to a lower paid job is not accommodation." The adjudicator also took into account evidence that suggested that, in the case of other employees, the employer had found accommodation that did not entail a reduction of salary. For example, one lab technician was assigned to do "media preparation full-time" to accommodate his inability to do other lab work.

Where the employer is seeking accommodation, it may well have to do more than simply look at existing jobs within the organization. Professor Michael Lynk writes that "the law requires an employer to determine whether existing positions can be adjusted, adapted or modified for the employee, or whether there are other positions in the workplace that might be suitable for the employee." (The Duty to Accommodate in the Canadian Workplace, paper presented at the Infonex conference in Ottawa, March 25th, 2002).

How much hardship is "undue"?

A key decision of the Supreme Court discussed in 1990 several factors that are relevant in assessing whether an employer faces "undue" hardship in cases of accommodation (Central Alberta Dairy Pool v. Alberta (Human Rights Commission) [1990] 2 SCR 489). These include issues such as financial cost, impact on employee morale, safety concerns and the size of the employer's organization.

Financial cost can become an undue hardship, but only where the cost is so high that it threatens the employer's ability to function, for example because the accommodation would have a serious impact on financial viability or that it would fundamentally change the nature of the employer's operations. Again, the burden here rests with the employer to prove that an analysis was done to quantify the costs of the accommodation.

Impact on employee morale is a significant concern and can become an undue hardship in some instances. However, the Supreme Court has said that "it is a factor that must be applied with caution." (Central Okanagan School District No. 23 v. Renaud [1992] 2 SCR 970). For example, if employees have stereotypical attitudes about whether a person with a disability can work alongside other employees, this will not be a relevant consideration. If accommodation causes serious disruption for established rights of other employees, say because of redefining of job duties or loss of seniority rights, then it is a factor that must be considered.

Safety concerns are also a very important factor. An accommodation that would jeopardize the safety of employees will often constitute undue hardship. But if only the safety of the employee in question is concerned, then the employer might have to assess the willingness of that employee to assume the risk to their own safety. In the Bhinder case (Bhinder v. Canadian National Railway Co. [1985] 2 SCR 561), the Supreme Court pointed out that "since no greater danger would be caused to others because of his non-compliance, any decision to accept greater risk should be left to Bhinder himself." This type of rationale is evident in the Ontario Human Rights Commission's Policy and Guidelines on Disability and the Duty to Accommodate, which provide that "Where possible, persons with disabilities should be allowed to assume risk with dignity, subject to the undue hardship standard." Thus, an employee who is willing to accept a certain measure of risk, in order to continue working, could be accommodated, particularly if there is no risk to the health or safety of others.

The size of the employer's organization is one very important factor. Obviously, a very small employer has neither the resources nor the flexibility to make broad accommodations for employees. A large employer, on the other hand, usually has more flexibility in adjusting the job duties of positions, assigning work to different individuals, creating new positions in the organization or instituting new methods of operation.

In Re NAV Canada and International Brotherhood of Electrical Workers (101 L.A.C. 4th, 158), the arbitrator had to determine how far the employer's obligation extended in the case of an employee who had a serious fear of flying. The employee, an electronics technician, was posted in Prince George and, as an accommodation, had been granted an exception from the requirement to fly to remote locations to service equipment. The employer was able to do this because there were sufficient technicians in Prince George who could fly as needed to remote locations. Some years later, the employee asked for a transfer to Cranbrook, to which he was entitled under the collective agreement. The employer refused on the basis that it did not have enough technicians in Cranbrook and that the open position would have to be filled by someone who could fly. In applying the Meiorin test, the arbitrator found that there was a legitimate reason for the discrimination since "The employer is charged with the high responsibility of providing and servicing navigational aids for safe air travel in Canada" and that technicians were needed to fly to remote locations. In applying the third part of the test, the arbitrator found that the employer would indeed face undue hardship if it further accommodated the employee. Of significance was the fact that there already was one employee in Cranbrook who suffered from a serious fear of flying and who was being accommodated.

Conclusion

The Supreme Court has set out a test to apply in order to assess the scope of the duty to accommodate. For the RCMP, in matters of medical discharge, the Force will have to find a suitable position for a member with an impairment who wishes to continue working, or else demonstrate that it would face undue hardship by doing so. This will require significant changes to existing policies within the Force which, currently, only provide that a member with a disability be considered for positions for which that member is fully qualified. There is nothing in existing Force policy that provides for alternate measures such as investing in training and professional development to prepare a member for an existing position, or alternately to create a new position for which the member would be q qualified. As the Committee recently pointed out in cases G-266 and G-267, "The duty to accommodate assuredly exists and it is far more extensive than what the Force's own internal policy recognizes."