You may be familiar with the 2005 Honda decision, where an employee that was suffering from chronic fatigue syndrome was fired for insubordination due to his refusal to submit to a medical assessment from the company specialist. What distinguishes this decision from many others was the amount of the damages award – $500,00 in punitive damages, the highest ever awarded by a Canadian court in an employment case.
The case reminded me of a time when I used to write attendance policy manuals. I would put in sample scripts for the managers to use as guidelines for conducting employee interviews relating to problematic attendance. To my dismay, I found out that some managers were conducting interviews with the script in hand, reading it verbatim and following it, with little if any regard for what the employee they were dealing with was saying. I had intended the script as a guide, not a formula!
The Honda decision demonstrates for me what often goes so very wrong in managing these types of challenging cases in the workplace. And there is no doubt that managing employees with chronic absenteeism is challenging. It is time consuming and complex, particularly when dealing with absenteeism related to a disability, including disabilities related to addiction, and some of the “invisible” disabilities, like chronic fatigue syndrome, which was what Mr. Keays, the employee in the Honda decision, suffered from. New syndromes seem to be cropping up every day, and the list of disabilities we have to accommodate is growing with no end in sight.
As was the case at Honda, the perspective organizations usually employ in designing a disability management system is the familiar labour paradigm of managing unacceptable employee behaviour in the workplace. While employee attendance is considered to be non-culpable behaviour which demands an approach which is not punitive, (not worthy of discipline), this perspective is one that encourages us to approach disability as an issue of managing unacceptable and/or problematic behaviour in the workplace.
This paradigm encourages us to view employees with disabilities as “problems”, rather than as employees, who, in many cases, are in fact long term and loyal employees with good work records experiencing a medically recognized problem that is affecting their ability to be at work. In many cases they may also be suffering from the psychological effects of learning to deal with the life altering affects of chronic disease or disability.
This “fix the problem” approach to managing disabilities encourages conflict, as was the case at Honda. We slot the problem into the system, we become positional, we adhere rigidly to our system. When the “problem” does not cooperate with our attempts to mange their “unacceptable behaviour”, it just reinforces our idea about them as a problem. And who needs more problems in the workplace?
In the attendance management paradigm, we want “sick” employees to be sick less so that they will be able to be at work, doing the jobs for which they were hired. However, the obligation to accommodate employees with disabilities arises not from labour law, but from human rights law. The human rights paradigm flows from the notion that all human beings are deserving of respectful and dignified treatment, and is interpreted through our Canadian legal foundation of equality of outcome and accommodation of difference. Employees have a right to be accommodated and employers are obligated to accept and respect that. These are the principles that should be guiding us in designing systems to manage employees with disabilities in the workplace.
This requires us to discard the old labour paradigm and shift to a human rights paradigm. We should be asking different questions when we start to think about designing systems for managing and accommodating employees with disabilities in our workplace. We need systems that will encourage dialogue, development of trust, and reasonable outcomes for both employees and employers. Some things to consider are:
- What is the organization’s philosophy with respect to promoting respectful and dignified treatment for employees and to creating a respectful work environment? How do these principles fit with the organization’s mission statement and its core values?
- Has the organization thought about how managing disabilities fits with the organization’s mission statement and core values, and if it has, how has this concept been communicated in the organization?
- Is the organization following its stated values, or just paying lip service to them?
- Has the organization designed a disability management program, and if so, who designed it? How is it structured? Is it fair, flexible and reasonable, or is it rigid and punitive? Does it encourage consideration of the distinct and unique issues of each employee that must access the system, or does it discourage dialogue, discourse and collaboration in favour of uniformed adherence to the program steps.
- If the organization is unionized, what thought has been given to the role the union plays in disability management?
- What qualifications is the organization looking for when selecting individuals to deal with the complex issue of disability management? What training is being provided for these employees? Do they understand human rights laws and how to apply them appropriately on a case by case basis? Do they have the necessary communication and conflict resolution skills, the capacity for empathy, the ability to be responsive and flexible based upon the particularities of each individual situation?
- What is being communicated to these individuals about the organizational philosophy with respect to managing disabilities?
- Is the organization monitoring what is going on with case management? Are there mechanisms in place to measure how well the system is working? Is the organization taking proactive steps to find out how employees with disabilities are being dealt with, or just waiting for a complaint to arise to find out that there may be a problem?
The Honda decision highlights the importance of having a well-thought out approach to the ever increasingly complex issue of managing disability in the workplace, an approach based upon human rights principles as opposed to labour and employment doctrine. Complaints of discrimination on the basis of disability now outnumber all other complaints at the BC Human Rights Tribunal as well as in other jurisdictions, overtaking sexual and racial harassment complaints.
Damages in these cases are rising, as the Honda case so clearly illustrates. The case law is evolving and demands that employers respond accordingly. Yes, managing disabilities in the workplace can be like wading into a pool of murky water. But what choice does an employer really have? As Bob Dylan wrote “you better start swimming or you’ll sink like a stone, cause the times they are a changing”.
Accommodating disability in the workplace is the law. There is no way to evade it. Sure it may appear to be creating all kinds of problems, headaches, and increased costs for the business; however, there is not much point in focusing on that unless it is to learn from the experience in order to figure out a better way. In the Honda case, a 14 year employee, the “computer guru” in the Quality engineering department, ended up on a disability pension pursuant to the Canada Pension Plan after developing post traumatic stress disorder due to “callous and insensitive treatment” by his employer. Honda lost a valuable employee, and ended up with a $500,000 damage award, and mounting legal costs (the decision is being appealed). Is this a desired outcome for either the employee or the employer?
Human Rights law is relatively new law, and it is continuing to evolve. It demands a new approach, a new way of thinking, a different paradigm, a creative approach, thinking “outside the box”. Conflict and litigation are not the answer. Ultimately we have to find a respectful, effective and balanced way to manage disability that promotes both the human dignity of the individuals that have the right to accommodation as well as the legitimate interests of business to get work done productively and profitably. Effective disability management systems are a core component of organizational success for companies that want to grow and prosper in today’s business environment.