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:
- 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 that she couldn’t work in a restaurant.
McDonald’s claimed that it had therefore met its duty to accommodate Ms. Datt and that the termination wasn’t in breach of the B.C. Human Rights Code since allowing her to come back to work would cause them “undue hardship.”
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:
- While the doctor had said she couldn’t 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 informed of the jobs at McDonald’s.
- There was no true functional assessment of Ms. Datt’s capacity to meet job requirements.
- The doctor said that Ms. Datt couldn’t tolerate “frequent” hand-washing and that she was to have “minimal detergent and water contact,” but McDonald’s didn’t inquire 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 alternative work or modified duties were available for Ms. Datt and no direct contact by McDonald’s to discuss returning to work. For example, McDonald’s didn’t explore the possibility of finding appropriately fitted gloves (e.g., “salad preparation gloves”) that Ms. Datt may have been able to use without aggravating her condition.
- There was no evidence of:
- the relationship between food contamination and hand-washing;
- the risk to the public if Ms. Datt’s hand-washing was limited; and
- other employees being adversely affected by Ms. Datt’s limitations.
Lessons for employers
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:
- 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.”
- An employer must consider what jobs are available or could be 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 noted that employers should be proactive and consult with the injured employee. The tribunal stated its displeasure with McDonald’s because of its “lack of consultation” with Ms. Datt as follows:
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.
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 shouldn’t 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.
- Clarify all ambiguous or contradictory information from third-party advisers.
- 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 during your accommodation discussions, rather than leaving that to insurers and other third parties.
- Do a final review, with counsel, of the information and the process.