Not All Disabilities Are Created Equally!

Notice of Termination

There is greater awareness in workplaces across Canada of an employer’s duty to accommodate a disabled employee up to the point of undue hardship in accordance with Human Rights legislation. But what actually constitutes a “disability” and are all disabilities created equally in the eyes of the law?

In the recent British Columbia Human Rights Tribunal case of Li v. Aluma Systems Inc. and Scott Baird, the Tribunal explained that not all medical conditions meet the criteria to be classified as a “disability” for Human Rights purposes.


The Employee was employed as a journeyman scaffolder and performed physically intensive work. While working on a project the Employee’s hands became swollen. The Employee continued to work over the next few days despite the swelling in his hands and the pain he slowly started to experience in his right hand after repetitive use of a hammer. A few days after first experiencing the swelling, the Employee went to see his doctor who diagnosed the Employee as having “popped a vein” in his right palm. The doctor prescribed a muscle relaxant and anti-inflammatory pills to ease the swelling and pain. The doctor also provided the Employee with a medical note stating, “Can do modified duties if available tomorrow. Can not use [right] hand next 1 to 2 weeks.” The Employee began taking the medication and after a few days the swelling in his hands was reduced. The Employer temporarily assigned the Employee to lighter duties after receiving the medical note from the Employee. After a few days on lighter duties, the Employee informed the Employer that his hands were feeling better and he wanted to return to his regular duties. During this conversation an argument ensued when the Employee criticized his co-workers for being bad workers and the Employer for hiring these employees. The Employer later terminated the Employee and the Employee brought a Complaint to the Human Rights Tribunal seeking damages for discrimination due to disability.


The Tribunal reviewed the facts and ultimately dismissed the Complaint on the basis that the Employee’s medical condition did not meet the definition of disability in accordance with the British Columbia Human Rights Code, the Employee was not adversely treated by the Employer and that there was no connection between the Employee’s health and the reason for termination.

The Tribunal stated that not every medical condition is intended to be protected by Human Rights legislation and that to meet the definition of disability for Human Rights purposes the medical condition must be involuntary, have a certain degree of severity or persistence and should impair a person’s ability to function in economic or other areas of life that Human Rights legislation seeks to protect. The Tribunal noted that the Employee’s symptoms were “transitory and not permanent in nature” and had already started to dissipate prior to termination. The Tribunal also commented that the Employee’s “medical condition lacked the severity, or permanence or persistence which would qualify it as a physical disability within the meaning of the Code.” In delivering their decision, the Tribunal stated that common medical conditions such as the cold or flu are also generally not “disabilities” in accordance with the Human Rights legislation and are not intended to be protected by the Code.

Lessons for Employers

This decision demonstrates that not all medical conditions will be protected under Human Rights legislation as “disabilities”. An employer’s duty to accommodate an employee’s disability only extends to true disabilities for Human Rights purposes. An illness that is transitory and does not impair an employee’s ability to carry out their normal functions will likely not be captured under the definition of “disability”. However, employers must still act with caution and obtain information from an ill employee to determine whether a medical condition is likely to be viewed as a disability and if so, will trigger an employer’s duty to accommodate. Employers should seek out the advice of Employment Law Lawyers for guidance when faced with an ill employee to determine whether there are any obligations on the employer to accommodate the employee and to minimize the risk of any Human Rights liability arising from the failure to accommodate if required.

Lessons for Employees

Employees should be aware that while Human Rights legislation offers protections to workers and places certain obligations on their employers, a medical ailment will not always be enough to trigger these protections. The scope of Human Rights protections is limited and will only apply in certain situations and with regards to certain illnesses. An employee who is experiencing an illness that is affecting their ability to work should consult with legal counsel to see whether the illness is likely to meet the definition of disability for Human Rights purposes and if so, what accommodations the employee should request from their employer.

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