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Ruling opens debate on handling miscarriage

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An Ontario ruling that miscarriage is a disability may have consequences for all employers with workers in Canada.

As a result of the decision, employers' absence management or performance target policies can be superseded by an employee's right to accommodation.

In an interim decision in March, the Toronto-based Human Rights Tribunal of Ontario, which evaluates accusations of discrimination and harassment filed under the province's Human Rights Code, found that a miscarriage constituted a disability entitled to anti-discrimination protections under the code.

The adjudicator in Mou v. MHPM Project Leaders also ruled that injuries from a slip and fall the employee suffered that took almost three weeks to heal also constituted a disability.

The case has garnered widespread attention — and some criticism — as it is thought to be the first case in Canada in which miscarriage itself was deemed to be a disability, although it does not automatically mean that every miscarriage constitutes a disability since such determinations would be made based on particular facts in individual cases, lawyers say.

“The case shows that the state of the law is always evolving,” said Evelyn Dormer, a Toronto-based associate with Filion Wakely Thorup Angeletti L.L.P. “Disability is not a fixed term. There's no set list of what the human rights tribunal of Ontario or a human rights tribunal in another province or even the federal tribunal will see as a disability.”

Although the employee at the center of the case, Wenying (Winnie) Mou, won on the disability ruling, she still has to establish a discriminatory connection between her termination and either her miscarriage or slip-and-fall disability. Ms. Mou's attorney and an official with Ottawa-based building and infrastructure development adviser MHPM, now known as Colliers Project Leaders Inc., declined comment.

Ms. Mou learned she was pregnant with her first child in May 2013, but suffered a miscarriage the following month. She took two vacation days after exhausting her five-day sick leave in January 2013 to recover from her slip-and-fall injury. Because of her absences, she did not achieve her required 1,800-hour target for 2013, according to Ms. Mou. During her performance evaluations, her supervisor told her she needed to improve on her ability to meet scheduled delivery objectives, but Ms. Mou was fired in February 2014 and was told to “draw your own conclusions,” according to court documents.

The employer argued that Ms. Mou failed to establish a disability, which must have an aspect of permanence and persistence to the condition under provincial law, and that she had fully recovered from her temporary health issues, according to the decision. MHPM also stated that Ms. Mou had a “bad year” owing to the injury, miscarriage and the death of her mother-in-law, but that did not constitute a disability.

Adjudicator Jennifer Scott rejected the employer's arguments noting that the code does not require a disability to be permanent and that the definition of disability should be broadly interpreted, to reflect a 2000 Supreme Court of Canada decision.

“The protections under the code would have little meaning if an employer could terminate an employee because of disability-related absences provided the disability no longer exists at the time of termination,” Ms. Scott said in her decision.

But Ms. Scott's decision has been questioned because of her conclusion that a miscarriage is not a common ailment — various government studies in the U.S. and U.K. show that 20% to 25% of early pregnancies end in miscarriage — nor a transitory event because of Ms. Mou's ongoing “significant emotional distress.”

In addition, Ms. Scott could have decided that the miscarriage was a transitory event but still reach a fair decision for the employee without deeming the miscarriage itself a disability by finding that the miscarriage was the trigger for a mental health condition protected by law, or that termination due to miscarriage was discrimination on the basis of sex, said Catherine Coulter, Ottawa-based counsel with Dentons L.L.P.

The decision has implications beyond Ontario because the provincial human rights tribunal creates law and its rulings are examined and sometimes adopted as precedent by other provincial or federal human rights tribunals or courts in Canada, lawyers say.

“While not binding, this case could be strongly suggestive in another province,” Ms. Dormer said.

Regardless of the ultimate outcome of Ms. Mou's case, employers with employees in Canada should be on notice that a miscarriage could constitute a disability and give rise to a legal claim.

“Being aware of that, I think they need to be mindful of giving affected employees any required physical or emotional time off after a miscarriage,” Ms. Coulter said. “The caveat I would add to that is that most employers would probably never know, unless the miscarriage was a late miscarriage.”

Employers should understand that disciplining or terminating employees to enforce absence management or performance target policies could create legal troubles when managing employees with disabilities, including an employee who suffered a disabling miscarriage, lawyers say.

If an employer has concerns either about an employee's performance, such as absences or a failure to meet deadlines, or a general demeanor change, they should have a conversation with the employee and give the employee an opportunity to disclose information about their circumstances that might explain the absences or performance issues, said Stefanie Di Francesco, a Toronto-based associate with McMillan L.L.P.

“If so, strict adherence to your attendance policy, for example, would have to yield to your duty to accommodate the employee,” she said.

Employees are obligated to ask for accommodation and employers would generally be protected if employees fail to make such disclosures, but employers walk a fine line in these situations because employees do not have to specifically disclose personal health information and employers must be careful not to ask personal questions, lawyers said.

“Something like a miscarriage is an intimately personal thing that an employee would have no obligation to disclose to their employer otherwise,” Ms. Di Francesco said. “A general, open-ended question would be better.”