It Takes Two… To Accommodate

By: Amanda Jacinto

Published: 27 March 2023

Prescot v Alberta Health Services, 2023 AHRC 30 (Ahanonu) is a recent human rights decision from the Alberta Human Rights Tribunal whereby the Complainant argued that the Respondent employer, Alberta Health Services (“AHS”) discriminated against her on the grounds of physical disability, contrary to section 7 of the Alberta Human Rights Act, when it failed to accommodate her. AHS argued that the Complainant was uncooperative in working with them to accommodate her.

The AHRC determined that AHS had failed to accommodate the Complainant’s disability.


The following are the pertinent facts of the Alberta Human Rights Tribunal’s decision:

  • Jane Prescot (the “Complainant”) commenced her employment with AHS in 1992
  • During the Complainant’s employment with AHS, she experienced illness symptoms in relation to her workplace
  • The Complainant made AHS aware of this, following which AHS conducted inspections and air quality testing in the building the Complainant worked in. These tests did not include mold specific testing
  • The Complainant went to her Doctor, and was diagnosed with a rare disease, Chronic Inflammatory Response Syndrome (“CIRS”) in December 2016
  • Individuals diagnosed with CIRS become sensitive to certain environmental factors such as mold
  • The Complainant obtained a medical note confirming that she was diagnosed with CIRS caused by water damaged buildings
  • Following this diagnosis, the Complainant was required to determine whether it was safe for her to return to the workplace
  • The Complainant’s Doctor recommended a “mold DNA test”, called an Environmental Relative Moldiness Index (“ERMI”) or HERTSMI-2 testing, to be conducted at her workplace, to determine whether it was safe for her to return to work
  • The Complainant submitted an Employee Request for Accommodation, which was influenced by her Doctor’s medical recommendations. The Request for Accommodation was as follows:

(a) That she be allowed to conduct a ERMI or HERTSMI-2 test for the purpose of determining the buildings where she might be at risk;

(b) That the respondent provide her with an alternative test to HERTSMI- 2 which could provide similar levels of accuracy;

(c )That she be allowed to work in a position where she could avoid chronic exposure to untested buildings;

(d) That she be set up for remote work through technology;

(e) That she be given a temporary role while the respondent continued to search for a permanent position that would address her accommodation needs.

  • AHS rejected the Complainant’s accommodation request for the following reasons:
    • The medical documentation she had provided to that point supported that she could work as a Registered Nurse or similar role in any AHS premises that was not water damaged, without ERMI or HERTSMI-2 testing
    • The testing she was seeking was not an accepted standard or requirement in Canada
    • The Health Link department (where they proposed she work) had been fully remediated since a leak in January 2016, had not suffered water damage since, and AHS had no control or authority to require improvements to the leased premises anyway
    • Both Great West Life (the disability insurer) and WCB had denied her claims and deemed her fit to work for full duties as a Registered Nurse.
  • AHS proposed the following in response to the Complainants accommodation request:
    • AHS would conduct a visual inspection of her original workplace;
    • AHS would review Registered Nurse vacancies in other buildings and propose them to her, without conducting an ERMI or HERTSMI-2 testing into those workplaces; and
    • She could return to work with Personal Protective Equipment (“PPE”) such as a respirator.

Analysis / Conclusion

The Tribunal held that AHS failed to accommodate the Complainant for the following reasons:

  • Despite AHS acknowledging the Complainant’s diagnosis and medical recommendation for ERMI or HERTSMI-2 testing to be conducted in the workplace, AHS did not allow for these tests to be conducted;
  • AHS failed to consider and seek the Complainant’s Doctor’s medical advice and opinion;
  • AHS proposal was inconsistent with the medical opinions provided by the Complainant; and
  • The PPE suggestion was not supported by the medical opinions provided by the Complainant nor did AHS seek out her doctor’s opinion on this suggestion

Altogether, the Tribunal held that in order for accommodation to occur, AHS and the Complainant were required to work together in determining the terms under which she could return to work. In doing so, AHS was required take into consideration the medical opinions provided by the Complainant and obtain the Doctor’s position in relation to its proposal. Instead, AHS disregarded the medical opinions provided altogether, and came to its own solution.

Here both the employer and employee proposed two vastly different terms on which the employee could return to work. The Complainant’s proposal was supported by medical opinion, whereas, AHS’ proposal was not.

My Take

This case is a good reminder that employers and employees are to work collaboratively together in accommodating an employee’s disability. This entails not only working with the employee, but also third parties, such as medical professionals, as was the case here. Otherwise, an employer may be deemed to have failed to accommodate an employee, despite proposing a resolution.

Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Amanda Jacinto is an employment and labour lawyer at Bow River Law in Calgary.