A human rights tribunal in British Columbia has decided that a McDonald’s restaurant did not do enough to accommodate a long-term employee who developed a skin condition that prevented her from meeting the restaurant’s hand-washing policies. Beena Datt started working at McDonald’s within three months of moving to Canada in 1981. After 20 years of employment at the same restaurant, she developed a skin condition.
Over the next three years, she was unable to work for long periods of time. She tried various treatments and working with gloves. She was on disability benefits and attempted a return to work three separate times. She was always eager to return to work. Datt’s doctor eventually stated she could not work in a restaurant, and she was terminated after 23 years of employment. To support the termination, McDonald’s argued that:
•it has strict hand-washing policies to meet health and food safety requirements;
•restaurant employees work as a team, and all positions must help out as needed;
•it had accommodated three lengthy absences and return-to-work attempts; and
•the employee’s own doctor had determined she could not work in a restaurant.
These arguments did not satisfy the British Columbia Human Rights Tribunal. It found McDonald’s had breached its duty to accommodate Datt’s disability.
By the time of the hearing, Datt did not want to work for McDonald’s, thus there was no order for reinstatement. Instead, she was awarded lost wages and profit-sharing, extra compensation for the tax effect of receiving a lump sum, reimbursement of some expenses and $25,000 for injury to her dignity, feelings and self-respect. If she had provided expert evidence about her employability and earnings potential, she could have been awarded an amount for future wage loss as well.
The tribunal’s decision was based on several key findings:
•While the doctor had said she could not work in a restaurant, he had never been provided with job descriptions or summaries of job duties for the different jobs in the restaurant.
•McDonald’s relied on its disability insurance provider’s assessment, but the insurer had never been fully apprised of the jobs at McDonald’s.
•There was no true functional assessment of Datt’s capacity to meet job requirements.
•The doctor said she could not tolerate "frequent" hand-washing and that she was to have "minimal detergent and water contact," but the employer had not inquired about how often she could wash her hands or what level of detergent and water contact was acceptable.
•There was no real attempt to see if any work was available for Datt and no direct contact by McDonald’s to discuss returning to work.
There was no evidence of:
•the relationship between food contamination and hand-washing;
•the risk to the public if Datt’s hand-washing was limited; and
•other employees being adversely affected by Datt’s limitations.
The tribunal then made several statements of principle in assessing an employer’s accommodations efforts:
•An employer must be "innovative, yet practical, in considering how to accommodate a disabled employee."
•"An employer must patiently and carefully assess a disabled employee’s condition and this can only occur if there are discussions with that employee."
•This was not an issue of whether McDonald’s had to create a new job for Datt, but whether the jobs that were available could have been modified or differently organized.
•An employer has an obligation to consider the bundling of duties, which might result in a "new" position being created.
"Ms. Datt was not entitled to a perfect solution, but she was entitled to a fulsome consideration of her restrictions and how those restrictions intersected with the hand-washing policies and the jobs that were available," the tribunal said.
Lessons for employers
This case is a reminder of the importance of following a comprehensive process to review accommodation options. Here are suggestions for employers dealing with an employee who has limitations as a result of a disability:
•Rely on doctors only to the extent of their expertise and knowledge. They should not make assessments of the jobs, job duties or what should be done to accommodate, but should only provide objective evidence of the employee’s limitations.
•Ensure doctors and other advisors have full information about the job duties and functions of the employee’s current job and of other jobs being considered.
•Clarify all ambiguous or contradictory information from third-party advisors.
•Maintain a complete inventory of jobs and job duties, and document the process of reviewing all the possible ways the work, facilities or processes might be changed to accommodate the employee.
•Identify all problems with possible accommodations, and gather the evidence to assess whether the problems amount to "undue hardship."
•Maintain regular and direct contact with the employee rather than leaving that to insurers and other third parties.
•Do a final review, with counsel, of the information and the process.
Earl Phillips is a partner in McCarthy Tetrault’s Vancouver office, practising in the Labour and Employment Group. He can be reached at (604) 643-7975 or firstname.lastname@example.org or visit www.mccarthy.ca for more information.
Over $50,000 served to fired McDonald’s worker with disability
Restaurant didn’t investigate whether it could accommodate 23-year employee when her skin condition prevented frequent handwashing