What is the Limitation Period When an Employee Alleges a Failure to Accommodate? It Depends

In Rush v. Fraser Health Authority (No. 2), 2024 BCHRT 13, the British Columbia Human Rights Tribunal (the “Tribunal”) denied an employer’s application to dismiss a human rights complaint due to expiry of the one-year limitation period under the BC Human Rights Code.

The application alleged that the employer had failed to accommodate the employee’s disabilities. Finding that the alleged breaches formed a pattern that amounted to a continuing breach of the employer’s human rights obligations to provide reasonable accommodations, the Tribunal found the complaint was not filed late and could proceed to a hearing.  

Background

The employee, a registered nurse at Fraser Health Authority (FHA), filed a discrimination complaint alleging the employer failed to accommodate her needs arising from both physical and mental disabilities. The employee’s allegations focused on a series of events beginning in 2014, and alleged that her employer:

• Began pushing her to return to full duties despite medical documentation indicating she required accommodations for her disabilities;

• Stated it was ending her accommodations and threatened to terminate her, leading to an exacerbation of the employee’s medical conditions;

• Delayed in providing access to forms to apply for Long-Term Disability (“LTD”) coverage, which the employee eventually received on a retroactive basis;

• Refused to directly contact the employee’s psychiatrist or provide the employee with LTD application forms as requested by the employee after a leave from work;

• Closed the employee’s access to a disability management program and modified duties because the employee had not provided ongoing medical documentation to support continued accommodations; and

• Sent “options letters” to the employee advising her that she was considered to be away on unauthorized leave and was required to return to the workplace.

  
  

In BC, as in Ontario, there is a one-year time limit for making an application before the province’s Human Rights Tribunal.

As the employee in this matter did not file a human rights complaint with the Tribunal until March 2018, her employer moved to have the application dismissed on the grounds it was filed too late.  

The Tribunal’s Decision

In an earlier decision, the Tribunal denied the employer’s application for dismissal. However, that initial decision was challenged via judicial review, leading to a Court finding that the Tribunal had made errors in assessing the evidence and directing the Tribunal to reconsider its earlier decision.

In a reconsideration decision issued early in 2024, the Tribunal reassessed the evidence and maintained its finding that the allegations of the employer’s failure to accommodate the employee constituted a continuous thread of alleged discrimination. The Tribunal affirmed its conclusion that the human rights application made in 2018 with respect to allegations tracing back to 2014 was not untimely, and could be heard by the Tribunal.

The Tribunal’s reconsideration decision emphasized a number of guiding principles for employers and employees to keep in mind when it comes to human rights and workplace accommodations:

• Whether an alleged breach is “continuing” calls for a contextual analysis. An employee is not automatically entitled to claim events of discrimination going back further than one year only because a more recent incident of alleged discrimination occurred within the past year. Determining whether a contravention is part of a “continuing” sequence calls for an assessment that is contextual, fact-specific, and “consistent with the liberal and purposive interpretation given to human rights legislation”;

• A program of pressuring a return to work would constitute a continuous breach. The Tribunal found the employee’s allegations did point to a “broader and continuous program of pressuring her to return to work despite contrary instructions from her doctors, and requiring her to submit medical information she had already provided or did not need to provide”, and so the employer’s actions going back to 2014 could be raised as part of a human rights application made in 2018; and

• LTD coverage does not remove employer liability. The fact that the employer’s insurer retroactively determined that the employee was disabled and qualified for LTD benefits from 2015 to 2018 did not impact the Tribunal’s analysis, which found that:

Decisions by third parties about an employee’s disability and fitness to work may not be based on the human rights analysis under the [Human Rights] Code and are not necessarily determinative of whether their employer failed to provide reasonable accommodation or otherwise discriminated against them […]

Key Takeaways

Workplace accommodations for employees with disabilities must be based on a responsive, two-way, context-sensitive communication process between the employee seeking an accommodation and the employer providing it. This is well-established.

The decision in Rush v. Fraser Health Authority (No. 2), emphasizes the importance of getting and keeping the accommodation process on the right track from early on. As the Tribunal found, when things go off track and an employer’s accommodation program risks failing to meet human rights requirements, liability attaching to that risk can extend into years beyond the 1-year limitation period for bringing a human rights claim.  Moreover, employers can be held solely responsible for shortcomings in the accommodation process even if an employee receives benefits (such as LTD) from an insurer.

For employers and employees alike, it’s imperative to get things right early in the accommodation process and to recognize and correct missteps as soon as possible.