Fixating on reduced hours instead of rethinking duties lead to failure in duty to accommodate, discrimination in BC case
A British Columbia employer discriminated against an injured worker by failing to assess whether modified duties were an option in the worker’s return to work and must pay the worker nearly $50,000 in damages, the province’s Human Rights Tribunal has ruled.
The decision is a reminder that accommodation isn’t a one-note exercise in cutting hours, but rather a structured, ongoing process grounded in evidence about what an employee can do —not a waiting game until they can resume their old job, according to Brooke Finkelstein, an employment lawyer at West Coast Workplace Law in Richmond, B.C.
“It's a continuous legal obligation that requires flexibility, ongoing dialogue, and a proactive approach — some employers may treat accommodation as an inconvenience or as an exception to standard operations, but they’re increasing their legal exposure and risk eroding workplace trust and morale,” says Finkelstein.
The 53-year-old worker sustained a serious knee injury on Nov. 28, 2018, while working as a second cook in the kitchen at the Hilton Vancouver Metrotown hotel. He was diagnosed with conditions that ultimately caused him permanent limitations.
Following the injury, the worker took medical leave supported by Employment Insurance and short-term-disability benefits, which were exhausted by October 2019. His medical file indicated that recovery would be prolonged following knee surgery, and he remained unable to return to his previous position.
Graduated return to work
The worker reached out to Hilton to discuss returning to work, and at a Nov. 6 meeting he discussed a gradual return-to-work (GTRW) program with management. According to Hilton, it offered modified hours on a gradual basis, but the worker said that he asked if he could return in a modified capacity “such as sitting on a stool and peeling potatoes, or anything else they needed.” Management said he had to be “100 per cent fit” to return to work.
Hilton sent a letter to the worker’s doctor the same day stating that its GRTW program was “based on modified hours (4, 6, and 8) and less days (providing rest for the associate) rather than modified duties.” The hotel asked the doctor to indicate if the worker was physically ready to begin a GRTW program in the same role.
The worker’s doctor replied that the worker had “severe knee issues which are preventing him from returning to work as a chef at this time.” A subsequent note on Jan. 16, 2020, said the worker could perform administrative work, desk work, or kitchen management on a part-time basis, but the knee injury prevented him from performing his regular cook duties.
When the worker again expressed his desire to return to work, Hilton sent the same letter to his doctor seeking information about a gradual return as second cook. The hotel reiterated its GRTW program “with the specific intention to have you return to your position.”
Human rights complaint from failure to accommodate
The worker sought employment elsewhere and filed a human rights complaint alleging discrimination in employment stemming from Hilton’s failure to accommodate his return to work following a permanent injury.
The tribunal noted that “employers are required to take reasonable and practical steps to assess whether working conditions can be changed to allow the employee to do their work and, if not, whether there is other work that they could do.” The tribunal found Hilton fell short of this obligation.
The tribunal also found that Hilton’s approach to accommodating the worker’s GRTW “was singularly focused on offering [the worker] a GRTW based on modified hours and did not consider whether there was another reasonable way to accommodate him.” It also found that it interpreted the medical information to mean that the worker couldn’t work in any capacity, but the information it had wasn’t sufficient to reach that conclusion.
Waiting for recovery a misconception
The tribunal criticized Hilton’s stance that a return to work would only be considered once the worker was fully capable of performing his pre-injury duties. That “100 per cent fit” mindset remains stubbornly common in Canadian workplaces, according to Finkelstein.
“One of the most common misconceptions is the belief that an employee needs to be fully recovered before returning to work or initiating that process,” she says. “Under the [B.C.] Human Rights Code, the duty to accommodate applies as soon as the employer knows or ought to reasonably know that a worker has a disability — employers have a legal obligation to explore modified duties or hours even while the employee is still recovering, if they've indicated that they’re able to come back to work in some capacity.”
For HR leaders, that means the trigger for the duty to accommodate is knowledge of a disability and an indication the worker can do something, not receipt of a “fit to return” note, says Finkelstein.
Narrow thinking may miss accommodation options
The tribunal accepted that Hilton could initially focus on reduced hours when medical information indicated the worker couldn’t perform regular duties, but the hotel fell short when it concluded accommodation wasn’t possible while still looking only at modified hours rather than seriously probing whether alternative or modified duties existed within the business.
Finkelstein says this narrow thinking is a recurring problem, even in large, complex workplaces where alternate tasks are often available.
“While offering a gradual return can be helpful, it's not enough on its own in many cases, and the tribunal made it clear that employers must consider the full range of possible accommodations,” she says.
That means building a broader “menu” of options into the return-to-work playbook: reassignment to lighter tasks, temporary redesign of roles, transitional work, or even moves into different positions. A meaningful accommodation process “looks at the employee's current capabilities and explores how the work can be adjusted to match,” not how the employee can be squeezed back into an unchanged job, says Finkelstein.
The tribunal noted that Hilton's witnesses all testified they would have been willing to offer modified duties, but said that “being theoretically prepared to offer modified duties is not the standard required by human rights law if appropriate action is not taken to facilitate real opportunities.”
Employer failed in duty to accommodate
The tribunal determined that Hilton failed in its duty to accommodate the worker. Hilton was ordered to pay the worker more than $16,000 in compensation for lost wages — making a reduction for mitigation income and a contingency reduction due to the economic shutdown during the pandemic — and $32,000 as compensation for injury to dignity, feelings, and self-respect from the discrimination.
“When supporting workers through a return-to-work process, accommodation should begin with a functional analysis of the employee's current abilities — HR needs to understand what tasks the employee can safely perform right now, which ones could be done with some modifications, and then which ones should remain off-limits based on medical advice,” says Finkelstein.
Once that framework is in place, HR can map tasks to capabilities, identifying which elements of the original role can be retained, which can be modified and which must be replaced with other duties, she says.
Finkelstein also says that when disability benefits and workers’ compensation are involved, a benefits claim “doesn't pause or replace the employer's independent duty under the human rights code.” The process should be “collaborative, well-documented, and responsive to those evolving circumstances,” she says.
Communication lines open during ongoing accommodation
Given that this process took place over a couple of years, Finkelstein warns that when an employee with a disability has been off for a prolonged period, HR can’t treat silence or ambiguity as a de facto resignation.
“If an employee has been off work due to a disability or medical issue and there's any uncertainty about their return, the employer shouldn’t assume a resignation has occurred,” she says. “Employers need to follow up and ask appropriate questions to confirm the employee's intentions, especially where there's been an ongoing accommodation process.”
Finkelstein believes that this decision should prompt employers to take a hard look at policies, training and culture around accommodation. Embedding accommodation in how an organization manages their people to reflect values of fairness, respect and inclusion is what ultimately “can reduce legal risk and helps to build a stronger culture,” she says.
