Under the Alberta Human Rights Act (the Act),[1] employers are prohibited from discriminating against an employee because of their disability, injury or illness. While physical disability, one of the protected grounds under the Act, covers a broad range of conditions, the Court of King’s Bench of Alberta (the Court) recently confirmed that the common flu does not meet the definition of physical disability under the Act.
Background
In Smith v. Alberta (Alberta Human Rights Commission),[2] the employee had several days of unreported absences from work. Due to his unreported absences, he was not in compliance with the employer’s absenteeism policy. The employee argued that he had contracted the flu and, as he was of the view that the flu was a disability, the employer was required to accommodate the employee regarding compliance with the absenteeism policy.
Additionally, the employee had previously been involved in a motor vehicle accident and he had also sustained an ankle injury from stairs at the workplace. As the employee was unable to perform certain duties at work following the motor vehicle accident and ankle injury, including his regular duties such as operating forklifts, he was given modified duties. The employee complained that the modified duties were unproductive sedentary work and alleged that the accommodation constituted a demotion. The employee argued that the employer failed to accommodate his physical disability and had demoted him.
The employee filed a human rights complaint alleging that the employer’s employment practices resulted in adverse treatment on the grounds of physical disability, in contravention of the Act. The employee asserted that he was suffering from a severe flu and that the flu is a protected disability. He also suggested that the combination of his earlier motor vehicle accident injuries and ankle injury, together with his flu, also created a disability.
Decision
The Court confirmed that the flu does not fall within the definition of “physical disability,” which is defined in the Act as:
any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes epilepsy, paralysis, amputation, lack of physical co‑ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, and physical reliance on a guide dog, service dog, wheelchair or other remedial appliance or device.[3]
The Court, confirming a number of human rights tribunal decisions, held that a disability is more than a common ailment lasting only a few days, and concluded that “temporary, common illnesses that almost everyone experiences cannot and do not constitute “disability…”[4] As described by the British Columbia Council of Human Rights, “[n]ot every absence from work for a medical reason constitutes a physical disability,” rather, “[t]he condition must entail a certain measure of severity, permanence and persistence.”[5] The Court further held that considering common ailments as disabilities under the Act would have the effect of trivializing the Act’s protection. Thus, without a disability, there was no obligation for the employee to accommodate the employee regarding compliance with the absenteeism policy.
Further, the employee was reasonably accommodated and the reassignment to modified duties was not a demotion or punishment. An employer is not required to provide perfect accommodation, and the employer in this case provided accommodation based on the information it had available, including work that incorporated forklift responsibilities, in line with the employee’s regular duties. Further, the temporary reassignment did not involve any loss of seniority or pay. As such, the Court concluded that the accommodation provided was reasonable. The Court further concluded that “a series of ailments absent any exacerbating effect or overlap cannot be collectively recharacterized as a disability merely because of their sequence.”[6]
Takeaways for employers
While common illnesses do not constitute physical disability, employers must still be aware of other conditions that do constitute physical disability, or any other protected ground under the Act, as they have a duty to accommodate employees because of a protected ground to the point of undue hardship. Accommodation can take on many different forms, such as altering job duties, transferring employees to different jobs or making changes to workplace culture and physical environments. When providing accommodation, below are some key points that employers should remember:
- Accommodation is assessed on a case-by-case basis – what is reasonable in one case may not be reasonable in another;
- Employers have to provide reasonable accommodation, not perfect accommodation;
- To constitute undue hardship, the hardship must be substantial in nature. For example, imposing an intolerable financial cost or causing a serious disruption to business. Business convenience is not a valid consideration in assessing whether an accommodation causes undue hardship; and
- The employee requesting accommodation must cooperate with their employer and participate in the accommodation process. This includes providing their employer with sufficient information, completing any required forms and cooperating with any necessary assessments for accommodation purposes.
If you have any questions regarding your accommodation obligations, please reach out to Kristi Wong or local member of Dentons Canada’s Employment and Labour group.
[1] Alberta Human Rights Act, RSA 2000, c A-25.5 [Act].
[2] Smith v Alberta (Alberta Human Rights Commission), 2024 ABKB 187 [Smith].
[3] Act, at section 44(l).
[4] Smith,at para 11.
[5] Nahal v Globe Foundry Ltd., [1993] BCHR No. 28, at para 55.
[6] Smith, at para 13.