|04-16-2008, 12:02 PM||#1|
Join Date: Mar 2006
Handwashing at McDonalds in Canada: OPTIONAL!
Northern Exposure » Blog Archive » Accommodations
McDonald’s fails to accommodate employee unable to wash hands
by Daniel M. Pugen and Earl G. Phillips
In Canada, human rights legislation provides that employers have a duty to accommodate disabled workers unless such accommodation would cause “undue hardship” on the employer.
A recent case involving McDonald’s Restaurants before the British Columbia Human Rights Tribunal illustrates the high standard of accommodation expected of employers. It also shows the kinds of proactive measures employers may have to take before accommodation is considered “undue hardship.”
In the case, the tribunal found that McDonald’s improperly terminated the employment of a long-time employee. McDonald’s didn’t do enough to accommodate the employee who developed a skin condition that prevented her from working and meeting the restaurant’s hand-washing policy.
Beena Datt started working at McDonald’s within three months of moving to Canada in 1981. After working at the same restaurant for 20 years, she developed a skin condition. As a result, over the next three years, she was unable to work for long periods of time. She was on disability benefits and unsuccessfully attempted to return to work three separate times. She tried various treatments as well as working with gloves, but nothing helped. She was always eager to return to work.
Ms. Datt’s doctor eventually stated that she couldn’t work in a restaurant.
McDonald’s then terminated her employment.
To support the termination, McDonald’s argued that:
The tribunal didn’t accept McDonald’s’ arguments and found that the company had breached its duty to accommodate Ms. Datt’s disability.
Since Ms. Datt no longer wanted to work for McDonald’s, the tribunal didn’t order reinstatement. But she was awarded damages of $55,000. The damages included lost wages and profit sharing, extra compensation for the tax effect of a lump-sum payment, reimbursement of some expenses, and $25,000 for injury to “dignity, feelings, and self-respect.” Also, the tribunal noted that, 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:
It can be argued that Canadian human rights tribunals are insensitive to the practicalities of operating a business and accommodating members of a workforce who may or may not have realistic expectations of how their unique situations might be handled.
Nonetheless, this case is a reminder that employers in Canada should follow a comprehensive process to review accommodation options for disabled employees. It also provides useful guidance on the standards of accommodation expected. The tribunal made several statements in this regard:
I do not accept that [McDonald’s] was open to considering what Ms. Datt had to say, her suggestions for a possible change in her duties or whether there were any other jobs available that she could perform … For example, it did not consider if Ms. Datt could perform some of the duties of a swing manager, work in the drive thru and then perhaps act as hostess. Taking these steps would not have caused it undue hardship.Some suggestions
Here are suggestions for employers dealing with an employee who has limitations as a result of a disability: