Disability, Work, and the Law

Scenario
Tara, Farnaz and Jessie work as servers in a new restaurant in Toronto -- called Nu -- that was opened by a celebrity chef and is getting rave reviews. The restaurant is located on two floors with two narrow rooms designed in order to maximize the view of waterfront. When working upstairs, servers must frequently go up the narrow stairs to the second floor while carrying food, making it a demanding working environment. The restaurant is full every night, but it does not have enough staff and is having problems with people calling in sick for their shifts.
Nu’s manager, Emilio, decides to implement a policy aimed at ensuring attendance and providing an incentive for not calling in sick. Under this policy, employees can not have more than three absences or any performance issues during their first six “probationary” months of employment, as otherwise they will be terminated. However, if they have fewer than three absences and acceptable performance they will get a modest “bonus.”
Tara is 25 years old and has worked in restaurants since she was 20. She has hemophilia, a genetic condition that affects her body’s ability to clot blood in the event of bleeding. In the event of a serious bleed, Tara must go immediately to the hospital to receive treatment. She also suffers from regular bleeding in her joints such as her knees, elbows and ankles, causing significant pain and discomfort. While Tara loves working as a server and being at such a high- profile restaurant, the job is causing her to have more health issues than usual. On two occasions, she is forced to leave work early to go to the hospital after accidentally cutting herself, although she got other employees to cover for her and Emilio did not appear to notice. She is also forced to take two days off “sick” when she has bleeds and needs to get treatment. Tara is concerned about Emilo knowing about her condition, as she wants to keep her condition private so that the other employees don’t know. She has also had negative experiences with employers in the past misunderstanding her illness.
Tara continues to have further bleeding events, and begins to suffer from worsening joint pain in her knees and ankles. Her specialist advises her that she must rest her body and take several days off to recover. Tara calls Emilio and tells him that she needs to take several days off because she is sick. Emilio tells her that if she takes this time off she will be terminated under the attendance policy. Scared that she will lose her job, Tara tells Emilio about her hemophilia condition. She asks that she be assigned to just work on the first floor, as this may place less stress on her joints and minimize the bleeding episodes. He tells her that he is sympathetic and will consider, but that he has a business to run.
Farnaz is 37 years old. Like Tara, she has also worked as a server for many years, but has worked continuously with Emilio at his previous restaurants as an assistant manager and server. Farnaz has never had any previous performance issues and has always been a valued employee. However, in the first few months, Farnaz has repeatedly put in the wrong orders on several occasions, resulting in unhappy customers and food being sent back. Unfortunately, on one of the occasions the customer was a restaurant critic for a national newspaper, resulting in a scathing review. Shortly after, Farnaz is seen to be wearing what appears to be a hearing aid in her right ear. While she doesn’t say anything about this to Emilio, he assumes she has a hearing problem and that this is the reason for the mistaken orders. However, when the problems continue, he is forced to meet with Farnaz. During their meeting, however, Farnaz does not say anything about having any hearing problem, and seems uncomfortable. Emilio is not sure what to do.
Jessie is 29 and has recently been hired to provide additional relief. He has tattoos running up his arms and a rough look, but came recommended from another chef. Shortly after starting, one of the other workers mentions that they used to work with him and that he was once a heroin addict. Emilio is concerned about this, particularly after Jessie fails to show up for work on two occasions without explanation. He meets with Jessie and tells him that he has heard he has drug problems in the past. Jessie tells Emilio that he used to be an addict, but has cleaned up his life and is happy to be alive. He mentions that he has these tattoos, as well as Hepatitis C, to remind him of his former life. Emilio is extremely concerned to hear that Jessie has Hepatitis C, as he understands this is contagious. Given all of the other problems facing the restaurant, he feels he cannot risk any health and safety issues with his staff and customers. He is considering terminating Jessie on this basis.
Discuss the restaurant’s obligations under Canadian human rights law with respect to all of these employees. Does Nu have a duty to accommodate these employees, and if so, do you think it has met its duty to accommodate to the point of undue hardship? Why or why not? Discuss any further information you would need to know in order to consider these issues.
Additional Sources:
https://laws-lois(dot)justice(dot)gc(dot)ca/eng/acts/h-6/
https://www(dot)canlii(dot)org/en/ca/scc/doc/2007/2007scc15/2007scc15.html
http://www(dot)slaw(dot)ca/2020/08/20/failure-to-accommodate-proves-costly/