A Discussion of Cosentino v Octapharma Inc., 2024 HRTO 860
Last month, we summarized the dos and don’ts for an employer to accommodate. Given that many workplaces are implementing full-time return to office mandates, this article explores the potential human rights considerations employers should be aware of.
The intersection between the employer’s duty to accommodate and return to work (RTW) mandates was recently explored in the Human Rights Tribunal of Ontario decision of Cosentino v Octapharma Canada Inc., 2024 HRTO 860 (“Octapharma”). This decision considered whether an employer’s implementation of in-person work constituted discrimination based on family-status, as well as reprisal, in light of an employee’s accommodation request for remote work.
Background
In Octapharma, an employee (Cosentino) requested accommodation (i.e. flexible work hours and the ability to work remotely) due to new caregiving obligations for her mother undergoing cancer treatment and for her son attending virtual school. These requests were made in August 2020; at this time and before the start of COVID-19, most employees at Octapharma worked remotely.
The employer initially accommodated the employee by providing flexibility in working hours to facilitate medical appointments. Cosentino was transparent about her schedule and was readily available via phone for remote meetings. However, in September 2020, the employer issued a PIP to the employee, despite the performance concerns not being unique to Cosentino (i.e. sales were low overall). On October 21st, the employer informed Cosentino her work location would personally change from being remote to in-office. Due to her mother’s worsening health and the second COVID wave underway, Cosentino requested to continue remote work under a family status accommodation.
Cosentino and the general manager (“GM”) discussed the employee’s accommodations in a phone call on October 23rd. The GM framed the change of work location as a business need, dismissed the employee’s concerns as “COVID nonsense,” and failed to inquire about her caregiving obligations, hybrid options, or alternative supports.
Between October 27th and December 3rd, the employee chose to continue working remotely. In this period, the GM ceased communications with the employee. Further, Cosentino’s vacation request was denied, she was told she would not be presenting at a conference that had been a part of her role previously, nor would the company pay for her to attend another conference, despite having done so annually. On December 3rd, the employee was terminated.
Decision
The Tribunal found that the employer discriminated against the employee based on family status considering the change in working conditions, failure to accommodate her, and ultimately, termination.
The Tribunal noted Octapharma initially accommodated Cosentino by allowing a flexible work schedule. However, once it implemented the return-to-office in October, the employer refused to adjust its own policies and requirements in considering Cosentino’s second accommodation request. As such, while a “perfect accommodation” is not necessary, the Tribunal determined the employer failed to meet its procedural and substantive duty to accommodate after October 21st through:
- Failing to fully inquire about the potential accommodations needs
- Failing to suggest any alternate accommodations (e.g. mixture of remote and in-office work)
- Stopping communication with the employee after October 2020
The Tribunal further found that Octapharma engaged in reprisal through the following conduct:
- Implementing a PIP
- Dismissive comments made by the GM during the October 23rd call about accommodations with Cosentino
- Ceasing or very limited communication between the GM/management and Cosentino
- Change in treatment of employee as compared to past practices (vacation request process, conference attendance and registration fees)
- Termination of the employee
Based on the above, the Tribunal ordered Octapharma to pay Cosentino $105,000 in damages: $80,000 for lost compensation (wages, benefits, bonuses) and $25,000 of general damages for injury to her dignity, feelings and self-respect. The higher general damages award was granted due to the employer’s conduct causing the employee heightened anxiety, sleep difficulties, and diminished self-worth – all while caring for her terminally ill parent during the pandemic’s uncertain early months.
Considerations for Employers
Octapharma reaffirms the need for employers to engage openly with employees seeking accommodations. Employers have the right to mandate a full-time RTW policy. Employees are permitted to request accommodations as necessary, including in response to RTW mandates. As such, employees have a duty to inquire about these accommodation requests by creating a dialogue with employees by asking about the nature of their restrictions, exploring alternate work arrangements, and the availability of additional supports.
Octapharma further cautions against employers relying primarily on ‘business needs’ to justify denying legitimate workplace accommodations, as this rationale may not withstand scrutiny in human rights law. The failure to accommodate can attract significant damages if a discriminatory termination is established.
For more information, please contact Turnpenney Milne LLP.
Written by: Emile Shen