One of the most difficult issues on which to advise employers is what to do when an employee claims that he/she needs changes to their job in the workplace to accommodate their disability.
Most employers figure that, if the employee can’t do “their” job, they are entitled to dismiss the employee.
Think again.
The Ontario Human Rights Code requires that you accommodate an employee to the point of “undue hardship”. Undue hardship is a lot more hardship than you think. The fact that the employee will be less productive for what you are paying does not equate with undue hardship. The fact that you might have to spend money to accommodate him is not undue hardship.
There is no “definition” of undue hardship. As the Supreme Court of Canada has stated:
“Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties - or even authorize staff transfers - to ensure that the employee can do his or her work, it must do so to accommodate the employee.”
Each case must be assessed on its own facts. What is painfully clear is that “undue hardship” has to be pretty bad. Consider the facts of one Supreme Court case:
An employee of Hydro-Quebec had mental and physical problems. Over the course of 7 years, she had missed 960 days of work. Given that there is a maximum of about 240 work days in a year, then that means that she had missed about 4 of those 7 years.
She was dismissed for absenteeism. Her union filed a grievance, alleging that the employer had not done enough to accommodate her. (I can hear you: “Are you kidding me?”) The arbitrator dismissed the complaint and the Superior Court agreed with him. However, the Quebec Court of Appeal set those decisions aside, holding that the employer had not proven that it was impossible to accommodate the employee.
Thankfully, the Supreme Court allowed the employer’s appeal, holding that that test was not whether it was “possible” to accommodate, but that the test remains “undue hardship”. In this case, the Court said: “The employer's duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.”
Thankfully, there is some guidance from the Court. However, it is still the situation where every case must be assessed on its own facts. Most of the time, I end up advising the employer that they are not yet at the point of undue hardship. There are situations where the employer can justify the dismissal but, in my experience, it is rare.
