Michael Lynk is a professor of law at the University of Western Ontario. The article set out below is a summary of information presented by Professor Lynk at his presentation given to the Public Service Alliance of Canada in September, The footnotes from Professor Lynk's article have been removed from this publication.
The Employer's Duty to Accommodate The essence of the duty is simple to state: Employers in Canada are required to make every reasonable effort, short of an undue hardship, to find an accommodation for an employee with a disability.
Its outer boundaries, however, are much harder to determine. But this much is clear to date: The duty requires more from the employer than simply investigating whether any existing job might be suitable for a disabled employee.
Rather, the employer is expected to determine whether other positions in the workplace are suitable for the employee or if existing positions can be adjusted, adapted or modified for the employee. This responsibility requires the employer to look at all other possible positions. Recent cases have said that the employer's accommodation efforts must be "serious", "conscientious", and it must demonstrate its "best efforts".
Consistent with the Supreme Court of Canada's direction in O'Malley, Central Alberta Dairy Pool, and Renaud, the initial burden is upon the employer to reasonably accommodate the employee's mental or physical disability. To prove that its accommodation efforts were serious and conscientious, an employer by law is required to engage in a three step process: First, determine if the employee can perform his or her existing job as it is.
If the employee cannot, then determine if he or she can perform his or her existing job with modifications. If the employee cannot, then determine if he or she can perform another job in its existing, modified or "re-bundled" form.
The Extent of the Employer's Duty The considerable weight that the duty places upon the employer is demonstrated in a recent award from Alberta. In Calgary District Hospital Group, a nurse with a back-related injury was preparing to return to work.
Her back injury had left her unable to perform several key aspects of her regular position, including the lifting and transferring of patients.
The employer had determined that because of her physical limitations, it was unable to place her into another nursing position. The union maintained that the hospital had not examined ways to re-arrange the nursing positions in order to find an accommodation.
The arbitration board agreed with the union. It found that although the nurse was unable to perform the duties of any of the nursing positions as they were currently structured, the employer had not taken the additional step of determining whether any nursing position could be modified to accommodate her. In its award, the board said it is not sufficient for the employer to show that its employee could not perform any of the current job descriptions. It must also be able to show that the job descriptions cannot be altered without undue hardship: Having determined that the grievor could not perform any existing job, the employer was obligated to turn its attention to whether, and in what manner, existing nursing jobs could have been adjusted, modified or adapted short of undue hardship to the hospital in order to enable the grievor to return to work despite her physical limitations.
In Re Greater Niagara General Hospital, the arbitration board ordered the employer to re-examine existing positions in a nursing unit to determine if they could be re-structured into a new "bundle of duties" that would allow the grievor, a nurse, to work within the limitations of her permanent back injury. That is, the hospital was required to determine if those lighter duties performed by all nurses in the unit could be re-assembled into a specific light-duty position for the grievor.
As the board acknowledged, this form of accommodation could only work in a larger workplace, where there are enough employees to allow such a re-bundling and yet, not unduly burden these other employees with only heavy tasks in their own re-assembled positions. The particular obligation of employers who operate larger workplaces is illustrated in Re T. The employee, a quality control inspector who worked with acids and caustics, suffered from severe epileptic seizures.
Several had occurred in close succession at work. With the available medical evidence indicating that future severe seizures were unavoidable, the employer terminated the employee for safety reasons. The arbitrator accepted that the continued employment of the employee in his regular position created an unacceptable safety risk to the grievor and to other employees as well.
Nevertheless, the arbitrator was satisfied that the size of the operations would allow the grievor to be accommodated in a different, re-designed job, with a regular rather than a rotating shift, and special training arrangements for other employees to work around the employee, among other conditions. The employer's obligation to accommodate includes the provision of training to the employee, provided that the costs of such training would not amount to an undue hardship.
In Re York County Hospital, the grievor, a nurse, was unable to return to her full nursing duties after suffering a work-related injury. The employer wanted to place her in a part-time clerical position, but the grievor aspired to become an educator with the hospital, which would have required training. The arbitration board ruled for the union, deciding that the clerical position was not the only available accommodation possible for the employee: In retrospect, and in view of the grievor's present career goals, it would have been prudent for the employer to have arranged for training in the education department.
These principles re-state, in a more concise form, the essence of the recent Supreme Court judgements: That duty includes "not only the duties and requirements associated with current jobs but also the duties and requirements associated with a bundle of existing tasks within the ability of a disabled employee. Whether accommodation would amount to undue hardship entails a spectrum of considerations, including, but not limited to: The costs of accommodation should be compared with the resulting benefits in deciding whether the hardship caused by accommodation is "undue".
The results of this comparison will vary from case to case. The employer bears the burden of proving that the accommodative measures would amount to undue hardship. Boundaries on the Employer's Duty to Accommodate The duty to accommodate in Canadian labour law is not limitless.
Arbitrators and the reviewing courts have recognised that accommodation always requires a balancing act between two underlying issues: The employer is not required to accommodate where undue hardship would result, nor is it obligated to create an unproductive position. In any permanent accommodation circumstance, an employee has to be able to perform the essential job duties of the existing or re-structured or newly-assigned position.
Attorney General of Canada. A pay clerk working for the federal government developed severe numbness and pain in her right shoulder, making it difficult to perform her duties. Other assignments as a receptionist and a special project clerk proved to be too demanding for her physical limitations. All of the other positions that the employer identified within her skill level required the use of the same, damaged muscles.
It eventually determined that she could not perform the essential components of her job duties, nor could she be retrained. Consequently, the employer released her. The arbitration tribunal denied the grievance, and the FCA upheld the release on judicial review. In its award, it stated that the undue hardship standard: In Re Greater Niagara General Hospital, the arbitration board ruled that while the employer had to consider the accommodation of an employee with a disability in another position other than her or his former duties, this did not entail the creation of an entirely new position.
The employer is not required to maintain a disabled employee in a position that is not useful or productive in the context of its operations. He stated that an employer is entitled to terminate where the evidence demonstrates that at the time of her or his dismissal, the employee was: In Re Canada Post Corp. However, depending on the undue hardship factors, it might not be required to offer these same duties where it is a matter of accommodating an employee on a permanent basis.
And in Re Ontario English Catholic Teachers' Association, the issue was whether the employer could place the employee in a lower-paid position as part of the accommodation. Arbitrator Kevin Burkett decided that an employee who cannot perform the essential duties of his or her job, even with accommodation, can be properly placed into a lower-classified and more poorly paid position, as long as it is consistent with the employee's medical restrictions and the employer's operational needs.
Employees with a long-term disability present the most challenging accommodation problems. But arbitrators in Canada have been clear that employers are not required to provide an accommodation to an employee who cannot perform the essential duties of an available position and whose disability offers no foreseeable improvement. In Re Calgary Herald a maintenance technician suffering from a chronic fatigue syndrome was unable to return to full-time work. The employer had arranged for the employee to work on modified duties on a part-time basis.
He was unable to work beyond 3 hours a day, he was unable to train for another position, stress aggravated his condition, and he was unable to meet the physical requirements of pulling cable, an essential feature of his duties. The available medical evidence indicated that he would not be able to perform the duties of even a part-time maintenance technician on a reliable basis, and there was no reasonable likelihood of improvement.
In dismissing the union grievance, the arbitration board held that: Arbitrator Owen Shime has recently said no. In Toronto Transit Commission, a bus driver consumed several beers shortly before resuming a shift. He subsequently drove the bus into the back of a garbage truck, injuring himself and several bus passengers. After the accident, the driver revealed that he was an alcoholic.
Alcoholism is recognised as a handicap under the Human Rights Code. Nevertheless, Arbitrator Shime ultimately dismissed the driver's grievance, ruling that the Code is not intended as a protective device for employees who commit major employment offences: The grievor, because of his illness, cannot be placed in a better position than other employees who commit similar offences.
The answer from arbitrators and the reviewing courts has been pre-dominantly no. This issue arises in situations where a collective agreement or an employment contract provision provides that an employee loses her or his job, even if for non-blameworthy reasons, if they are absent for a pre-established period usually 12 or 24 months.
These provisions have regularly been found to be a form of indirect discrimination a workplace rule that is neutral on its face, but has a discriminatory effect. CEP and Backhouse on a judicial review of an arbitration award that an automatic termination provision in this case, a 2- year clause was ineffectual as it pertained to disabled employees because it conflicted with the Ontario Human Rights Code. It noted that the provision made no reference as to whether the employee could perform any other job that may be available aside from her or his former position.
Nor did it require the employer to consider whether any action short of termination was possible. The Court upheld the arbitrator's ruling that the disabled employee had been treated differently than other employees, and that the difference was based solely upon his disability, a protected ground under the Code: Accordingly, under the automatic termination provisions, he does not have the same right as other employees to challenge his termination within the standard of proper cause.
In my view, that must be deemed unequal or different treatment from that of the majority of the bargaining unit employees with respect to his employment. Similarly, in Re Toronto Hospital, the arbitration board nullified the effect of an automatic termination provision in circumstances involving an employee who was off work with a disability.
In its judgement, the board wrote: She was absent from work because she had a work-related injury. She was terminated because she was absent from work. Several recent arbitration decisions have held that a release from employment based upon an automatic termination clause, where the grievor was unable to perform the essential duties at the trigger moment of the clause, is valid. In that context, there is no logic or reason to require the standard of just cause because it is simply inapplicable.
The prevailing approach has been to strike down the mechanistic application of automatic termination provisions in disability cases, because they are deemed to treat employees with disabilities differently from other employees in the bargaining unit who have recourse to the grievance procedure to challenge a termination on "just cause" grounds.
On the one hand, the reviewing courts, labour arbitrators and human rights tribunals have all regularly ruled that a disabled employee must not be disadvantaged in the calculation of seniority because of her or his absence from work due to illness or injury. On the other hand, arbitrators have not generally granted "super-seniority" rights to disabled employees, so as to allow them a greater claim to work than more senior employees. In other words, an employee with a disability must be accorded equal treatment despite her or his condition, not superior treatment because of the condition.
A number of decisions over the past five years by the courts, labour arbitrators and human rights tribunals have come to different, and sometimes quite opposite, conclusions.