Managers who impede the accommodation of a disabled employee may attract personal liability. In May, a decision was released, Cassidy v. Emergency Health Services Commission and another (No. 5), 2013 BCHRT 116, where the British Columbia Human Rights Tribunal set an interesting precedent. The Tribunal found not only the employer, British Columbia Ambulance Service (“BCAS”), liable in failing to accommodate a disabled employee, but also the manager for his role in preventing accommodations.
The decision involved a paramedic with multiple sclerosis who was no longer able to check for a pulse as a result of his disability. In May of 2005, the manager became aware of the employee’s disability and was concerned about the employee’s ability to carry out the duties of a paramedic. It was the manager’s view that being able to check for a pulse was an essential requirement of working as a paramedic. The manager also became concerned that the employee’s disability might impact the employee’s ability to safely drive an ambulance. Accordingly, the manger had the disabled employee removed from active duty. At the request of the manager and BCAS, the disabled employee was assessed by medical professionals. He was deemed to be fit to return to work, with minor restrictions. The manager, however, refused to allow the employee to return to work. This was contrary to the advice of medical professionals and the human resources department at BCAS.
The Tribunal determined that the disabled employee could have been accommodated in a “Driver Only” position without undue hardship. Even though the Ambulance Services seeks to have both paramedics in each ambulance to be fully qualified, there were 135 paramedics employed by the BCAS in a “Drivers Only” position. Further, there was also a lack of evidence illustrating any actual or potential harm from not having both paramedics being able to check for a pulse.
This case is interesting because of its focus on the manager’s role in impeding the accommodation of a disabled employee. Although many human rights complaints name both the employer and individual managers, there are relatively few cases were individuals are found liable.
The Tribunal noted that the manager not only failed to support the disabled employee in his search for effective accommodation, but actively thwarted accommodation on several occasions. The Tribunal stated at paragraph 243 that:
“There is nothing in the manner in which [the manager] dealt with this situation which remotely resembles what the Tribunal would expect a senior manager to do when confronted with an issue of accommodation.”
The Tribunal noted that managers can avoid liability by proceeding objectively, neutrally and reasonably.