No Washing Required
As Mark Steyn points out, ‘Canada may no longer believe in old-fashioned human rights like free speech and the presumption of innocence, but it’s discovering exciting new “human rights” every day.’ The latest human right discovered by the country’s human rights commission? If you work in a restaurant you have the right not to wash your hands.
A recent case involving McDonald’s Restaurants before the British Columbia Human Rights Tribunal illustrates the high standard of accommodation expected of employers. It also shows the kinds of proactive measures employers may have to take before accommodation is considered “undue hardship.”
In the case, the tribunal found that McDonald’s improperly terminated the employment of a long-time employee. McDonald’s didn’t do enough to accommodate the employee who developed a skin condition that prevented her from working and meeting the restaurant’s hand-washing policy…
McDonald’s argument
To support the termination, McDonald’s argued that:
- it has strict hand-washing policies to meet health and food safety requirements;
- restaurant employees work as a team, and all positions must help out as needed;
- it had accommodated three lengthy absences and return-to-work attempts;
- and the employee’s own doctor had determined that she couldn’t work in a restaurant…
The tribunal didn’t accept McDonald’s’ arguments and found that the company had breached its duty to accommodate Ms. Datt’s disability. Since Ms. Datt no longer wanted to work for McDonald’s, the tribunal didn’t order reinstatement. But she was awarded damages of $55,000…
The tribunal’s decision was based on several key findings:
- While the doctor had said she couldn’t work in a restaurant, he had never been provided with job descriptions or summaries of job duties for the different jobs in the restaurant.
- McDonald’s relied on its disability insurance provider’s assessment, but the insurer had never been fully informed of the jobs at McDonald’s.
- There was no true functional assessment of Ms. Datt’s capacity to meet job requirements.
- The doctor said that Ms. Datt couldn’t tolerate “frequent” hand-washing and that she was to have “minimal detergent and water contact,” but McDonald’s didn’t inquire about how often she could wash her hands or what level of detergent and water contact was acceptable.
- There was no real attempt to see if any alternative work or modified duties were available for Ms. Datt and no direct contact by McDonald’s to discuss returning to work. For example, McDonald’s didn’t explore the possibility of finding appropriately fitted gloves (e.g., “salad preparation gloves”) that Ms. Datt may have been able to use without aggravating her condition.
- There was no evidence of:
- the relationship between food contamination and hand-washing;
Those new human rights, you’ve got to love them. Strangely they come across as… socialist.
Unbelievable. So I wonder how this law will be applied to hospitals if they have a surgeon who can’t scrub his/her hands?
Hmmmm I wonder what business is going to be like in Canada McDonalds when the word gets out that they don’t get to enforce hand washing policies.
The decision was of course absurd. However, in fairness, the Commission didn’t say she had to have a job handling food. The thrust of the opinion basically says that McDonald’s ought to give her a cashier job or something else which involves minimal contact with food, and let her wear gloves on the rare occasions when she would need to handle food. McDonald’s basic contention was that all of its jobs are "team" jobs, and every employee basically needs to be able to fill in for every other employee. They didn’t say that she had to be allowed to have a job doing food prep.
But yes, the decision on the whole was loony and my intention is to never eat at a restaurant in British Columbia until this ruling is reversed.
Oh, and Christine, the doctors washing is actually an issue in Britain right now, where some female Muslim doctors and nurses don’t want to expose their arms to view by males and thus wish to not have to scrub prior to surgery.
Hah, I guess I should have known better than to joke about it; in today’s world, the truth is more bizarre than fiction.
I guess we’ll have to start a running list: never eat a fast food burger in BC, and hope like hell your appendix doesn’t threaten to rupture in UK.
The employer must be able to demand a lot of things from employees. Of course, there should be more dialogue between employer and prospective employees, so that job seekers know in detail what they will have to do to meet the contract.
Steyn, a supporter of Gitmo and other abuses of human rights, is not allowed to say jack about free speech and stuff, though. Well, at least he doesn’t get a free pass doing so.