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Employment & Labour

Workplace accommodation: miscarriage, pregnancy related illnesses

By Bram Lecker and Maria Esmatyar

The Ontario Human Rights Code protects the disabled from discrimination and harassment at the work. If you become temporarily disabled due to an illness or injury, your employer must offer reasonable accommodation so you can continue working. The Human Rights Tribunal of Ontario recently expanded the definition of disability to include circumstances uniquely faced by pregnant women. For workplace accommodation miscarriage, stillbirths and abortions are all now recognized as pregnancy related illnesses, along with the mental distress that ensues. If you suffer such an illness, our laws now offer you the same protection as any other person who is disabled while employed.

A recent case

This came as an interim decision from the Tribunal. The period of 2013-2014 was a difficult time for the applicant. Because of a slip and fall, she suffered a serious physical injury that required her to take three weeks off from work. Next, she lost her baby through a miscarriage. And finally, as if that was not enough, her mother-in-law died suddenly. All these occurrences were beyond her control. Yet, on Feb 27, 2014, her employer let her go.

The applicant filed an application with the Tribunal. She claimed the respondent fired her while she was disabled. She was incapable of performing at full peak as if nothing was wrong and required time to recover. Her employer, on the other hand, wanted this application dismissed because she failed to establish a disability.

Miscarriage, a disability?

This case, therefore, was about establishing just that. Did the applicant’s injury and miscarriage disable her? The Tribunal ruled that it did. Specifically, they recognized that a miscarriage is not a simple ailment like the flu or strep throat. Those common illnesses are transitory in nature and do not cause long-term absences that affect an employee’s ability to work.

The applicant’s initial injury was not such an ailment, either. It was neither common nor transitory. She required extended time off to recover. The Tribunal further recognized that these events took place nearly a year prior. Regardless, she continued to experience significant residual emotional distress and depression as a result.

Workplace accommodation

This ruling made one point very clear. Your employer must give you time and space to recover from your pregnancy related illness when it occurs. If you require workplace accommodation miscarriage now qualifies you for it.

The first step involves seeing a physician for a proper treatment plan. This could require medication, treatment or extended time off. Your employer cannot demote or fire you for it. Furthermore, they cannot harass you to get back to work while you undergo this treatment.

At recovery, your doctor could recommend a gradual return back to work and for mental distress, you may request time off to attend therapy. Your employer can refuse to provide these accommodations but only with proof that doing so would cause them undue hardship. And the courts set the bar very high indeed for this determination.

This is a fragile stage for any employment relationship. All employers should handle it with the tact and prudence it deserves, yet many do not.

Constructive dismissal

Sadly, some employers will not put up with the inconvenience of ill and disabled employees. And often, this is precisely where the deterioration in your employment relationship could begin.

If your employer starts viewing you through a productivity lens, they may label you as a poor performer. No matter what, you will not be worthy of the wage they are paying you. In their eyes, someone else could do your job more effectively.

You must recognize this as discrimination and know that our laws specifically prohibit such treatment. This employer will start to frustrate you to a point of quitting. They may refuse to accommodate you. And they might also not give you a chance to recover and return as the productive employee you used to be.

Constructive dismissal cases related to illness and disability come by our offices all too frequently. If your employer has ignored your doctor’s note for accommodation, your case must escalate to our employment lawyers as soon as possible.

Strategically plan your next move

At Lecker & Associates, the first issue we concern ourselves with is securing your means to earning a living. We can negotiate your accommodation more firmly and educate your employer about the law. We will coach you to manage this relationship so you come out on top.

Unfortunately, even when everyone understands the law, human emotions and attitudes cannot be legislated. You simply cannot force your boss to like you. Perhaps your employment relationship has digressed to a point of being toxic and not salvageable? If your boss fired you or forced you to quit under these circumstances, you need our lawyers at your side. We will go to bat for you to ensure you are adequately compensated for this wrongful or constructive dismissal.

Your employer cannot unfairly discriminate or fire you for a pregnancy related illness. For workplace accommodation miscarriage is definitely a condition that the Tribunal has upheld as a disability. You have every right to seek fair treatment from your employer when this occurs.

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