By Mark Tector and Tiegan A. Scott

Decision

On April 3, 2024, the Alberta Court of King’s Bench (“ABKB”) upheld a decision of the Chief of the Commissions and Tribunals (the “CCT Decision”), which held that the common flu is not a recognized disability under the Alberta Human Rights Act.  This decision is consistent with cases from the rest of Canada, including from the Supreme Court of Canada.

In Smith v Alberta (Alberta Human Rights Commission)^[1], an employee called in sick, then took the next three days off without giving notice to their employer. This contravened the employer’s absenteeism policy. The employee asserted that he was suffering from a severe flu, which he claimed was a protected disability under the provincial Human Rights Act.

The employee applied to the CCT alleging the employer’s policy resulted in adverse treatment on the grounds of physical disability. The Complaint was dismissed, and the employee appealed to the ABKB.

Upholding the CCT Decision, the ABKB reasoned that a disability is more than a common and temporary ailment. Here, the employee’s flu lasted less than a week. The ABKB also dismissed the employee’s argument that two pre-existing injuries (one of which was sustained at work), in conjunction with the flu, created a disability.

And, as more good news for employers, the ABKB found the employee had been properly accommodated for an ankle injury that had occurred in the workplace. The employer acted reasonably in altering the employee’s duties (i.e. placing him on forklift duty), even though the employee viewed the accommodations as a demotion. Because the employee’s illness (i.e. flu) was not a disability, the employer had no duty to accommodate the employee regarding compliance with the absenteeism policy.

Applicability to Atlantic Canada

The principles in Smith are good law in Atlantic Canada. As with any situation involving employee disabilities or claims for accommodation, each case will need to be considered on its own facts.  However, all four Atlantic provinces have released provincial guidelines to the effect that flus, colds, or other common and temporary ailments will, in most cases, not qualify as a disability.^[2]

Key takeaways for employers:

• Recognized disabilities under Human Rights Legislation are more than a common and transitory sickness such as the common cold or flu.
• However, simply because an illness is transitory does not automatically disqualify it as a disability. Rather, employers must be cautious and assess the claim on a case-by-case basis.
• Accommodation does not have to be perfect, just reasonable in the particular circumstances.
• Just as employers have a duty to accommodate employees, employees have a duty to cooperate and comply with the accommodations provided to them by their employer.

Employers are encouraged to reach out to our labour and employment team with any questions regarding employee disability claims. We are always available to answer any questions on what steps employers can take in a specific case, and help you decide on the right strategic approach to respond to the issues raised.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors, or a member of our Labour & Employment Group.

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[1] 2024 ABKB 187 (CanLII), [Smith].
[2] Newfoundland, PEI, New Brunswick, Nova Scotia