Canadian Lawyer InHouse

9 canadianlawyermag.com/inhouse february 2015 by Hendrik Nieuwland and Stephanie brown Workplace Solutions W inter has arrived, and with it the flu season. On Dec. 16, 2014 it was reported in the Ottawa Citizen that this year's flu vaccine was a bad match for the flu virus. David Reevely wrote: "More than 90 per cent of the 342 cases of flu confirmed in Ontario labs so far have been a type called H3N2/Texas, which isn't one of the types the vaccine is built for." Employers can therefore expect an increase in the number of employees coming down with the flu this winter. This raises the interesting question of what obligations employers have to workers suffering from the flu? Employers have a duty to accommodate employees with disabilities under the Ontario Human Rights Code. While it is clear this duty exists, it is not always clear what constitutes a "disability." In Burgess v. College of Massage Therapists of Ontario, the Ontario Human Rights Tribunal clarified that common ailments, such as the flu, are not disabilities that attract a duty to accommodate. In Burgess, the applicant was a registered massage therapist, and the respondent was the College of Massage Therapists of Ontario. The college is responsible for administering testing for candidates seeking to become licensed RMTs and employs a number of experienced RMTs to act as examiners. Examiners are hired on annual contracts, and are required to undergo two days of mandatory training each year before administering the tests. The applicant, an RMT who had worked as an examiner for the previous seven years, was unable to participate in the mandatory training prior to the 2012 tests because she was sick with the flu and strep throat. The college therefore cancelled her one-year contract to act as an examiner. The applicant brought a human rights complaint against the college, alleging that she had been discriminated against as a result of her sickness, which she alleged was a disability. The college argued that the mandatory training was a reasonable occupational requirement for examiners, and to accommodate the applicant by conducting individual training at another time would amount to undue hardship. The tribunal disagreed and held that if the applicant was disabled, the college would have a duty to accommodate her by training her individually, even though the college would have to incur the cost and inconvenience of that training. The college also argued that the applicant's illness was not a disability pursuant to the Code. The tribunal agreed and dismissed the complaint on this ground. The decision quoted the lengthy definition of "disability" from the Code, and acknowledged that human rights legislation generally, and the concept of disability specifically, must be interpreted broadly. However, the tribunal cited the decision in Ouimette v. Lilly Cups Ltd., and held that commonplace, temporary illnesses such as the flu are not disabilities and to consider them as such would trivialize the protections under the Code. The tribunal also referred to a 2009 decision which held that an applicant's bronchitis was not a disability because it was a common illness and did not impact on the applicant's ability to fully participate in society. Finally, the tribunal quoted the Supreme Court of Canada's decision in Quebec v. Montreal, which stated that normal ailments such as colds are not disabilities. The tribunal held that the applicant's flu and strep throat are common and temporary ailments that are experienced by just about everybody, do not act as a barrier to a person's ability to participate in society and are therefore not disabilities under the Code. It was noted that the applicant had argued that strep throat, if left untreated, could become a more serious condition affecting the heart and other major organs. However, the applicant had taken antibiotics and had returned to work in under a week, so her case of strep throat had not been severe. The tribunal borrowed from the Ouimette decision in holding that to consider such common ailments "disabilities" would trivialize the Code's protections. The Burgess decision clarifies that illnesses such as a cold, the flu, or bronchitis do not constitute disabilities under the Code and employers are therefore not required to accommodate employees with such sicknesses. However, a very serious case of strep throat might constitute a disability. Generally, employers can rest easy knowing that there is no duty to accommodate employees with colds or flu. IH Hendrik Nieuwland and Stephanie Brown practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto. is the flu a disability? Why it's important to understand the differences in case law around common illnesses.

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