Published on March 24, 2008 by Donna Seale
Further to my post the other day on Internet addiction where I cautioned Canadian employers against proceeding with automatic termination of an employee who raises such an addiction, comes this response from Jon Hyman at Ohio Employer’s Law Blog. In essence, he states that in the US:
I certainly don’t take issue with Mr. Hyman’s views on what the ADA may or may not require of employers in an Internet addiction scenario as he is doubtless more familiar with American human rights legislation than I am. Our differing opinions are likely attributable to the different jurisdictions we practice law within. That, of itself, is an important lesson for employers — to always be aware of what human rights legislation applies in the jurisdiction you operate your business from and what it requires of you.
For my part, I maintain what I said in my previous post about what the law in Canada would likely require of employers who discover an Internet addicted employee in their midst. If, upon termination for excessive non-work related computer use, an employee advises an employer they have an addiction to the Internet, a wise employer would, in my view, take a cautious approach to proceeding with that termination in light of this information. Does this mean that an employer would be prevented from terminating? Not necessarily. But, going through the exercise of determining whether the employee has an actual disability and, if so, considering what might that require of the employer from the point of view of accommodation prior to making the final decision to terminate is an approach that has been mandated by Canadian courts, arbitrators and human rights commissions. Ignoring reference to a potential disability at termination (or otherwise), is done at an employer’s own risk of attracting human rights liability. Does it matter that Internet addiction may be a "new" disability? No, I don’t think so, particularly since it is being likened to alcohol and drug addiction both of which are considered disabilities requiring accommodation in Canada. I also think employers need to take care not to discount a claimed addiction or other disability because they do not think the addiction or disability are valid (look at what happened to Honda Canada when it questioned the validity of chronic fatigue syndrome).
As for Mr. Hyman’s comments that even if an employer paused to consider accommodating an Internet addicted employee the employee would still have to perform the essential duties of the job, I completely agree. Where we part company is on the approach to the actual question of accommodation. While it may not be easy to think up possible ways an employer could accommodate an Internet addicted employee who needed to use the Internet and e-mail to do her job, the law in this country still requires an employer to engage in that process. Failure to actually engage a process to consider what could be done to accommodate is, in and of itself, sufficient to trigger liability under Canadian human rights law even if no accommodation could ultimately be provided. (Besides, aren’t there blocking devices employers can use to block employee access to non-work related Internet sites? — speaking from a real non-techie perspective — but I digress). In any event, accommodation is an individualized process and would have to be considered from the perspective of what would need to be done to accommodate the specific employee in question in their specific job in question, which may require a lot of an employer or, perhaps, not.
So, the real message here? Tread lightly whenever an employee raises a potential disability issue connected to their inability to do their job because whatever actions you take after being advised of the potential disability (whether it is Internet addiction or something else) may be considered discriminatory. Forewarned is forearmed.
Related posts:
Donna M. Seale B.A., LL. B.
Human Rights Lawyer
and Educator
