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Sorry but I can’t help you with your purchase, I’m being accommodated by my employer

duty-to-accommodate2It is part and parcel of a retail employee’s job to interact with customers and assist them in making purchases. However, if an employee with a disability/injury has trouble in performing this essential duty, how far must the employer go in accommodating that employee?

A recent Human Rights Tribunal decision dealt with an interesting accommodation request by an employee with a wrist injury. That employee requested that she should be allowed to tell customers (when working alone) that they had to return to the store at a later date so they could be assisted by another employee who did not have her physical restrictions. Thankfully, the Tribunal found in favour of the employer. It was an essential duty of the position to be able to assist customers and telling customers that they had to go away and come back later was unreasonable in the circumstances.

Brief background

The employee had a wrist injury which prevented her from performing some of the physical duties of her position, including assisting customers in the store. Through discussions with the Workplace Safety and Insurance Board (“WSIB”), the employee was accepted into the Work Transition program. Accordingly, her employment was terminated shortly thereafter.

The issue in dispute

The employee claimed that the duty to accommodate under the Human Rights Code (the “Code”) required the employer to permit her to send customers away from the store and to defer certain tasks like “merchandising” and “housekeeping” to other employees to perform. The employer argued that it was irrelevant how frequently the employee would actually turn customers away. Instead, what was important was that the accommodation was incompatible with the performance of the employee’s essential duties.

Notably, the employee conceded that the duty to accommodate did not require the employer to schedule a second employee on shift.

The Tribunal’s decision

The Tribunal found that the duty to accommodate did not extend as far as the employee wanted. The employer did not have to put up with a practice of telling customers to come back later when another employee could assist who was not limited by a disability. Doing so would result in the employee not performing an “essential duty” of the job – i.e. assisting customers in the store.

In making this finding, the Tribunal made a number of helpful comments about the scope of the duty to accommodate and an employer’s ability to insist on an employee performing the “essential duties” of his/her position. The Tribunal found that the duty to accommodate did not require: (a) “permanently changing the essential duties of a position or permanently assigning the essential duties of a position to other employees”; or (b) “exempting employees from performing the essential duties of their position”.

The Tribunal also found that an “essential duty” of a job is one that “is required to be performed whenever there is a need to perform it”. Accordingly, the employee could not rely on the fact that she would be able to assist customers “most of the time”. It was not a breach of the duty to accommodate for the employer to insist that the employee be able to assist customers all the time.

The Tribunal neglected to make a finding as to whether the employee could defer her other duties to other employees.

Lessons for employers

The duty to accommodate can be an onerous obligation on employers, especially retailers. This decision is a good reminder that the duty to accommodate does have limits, and particularly where the accommodation would result in the employee not performing the essential duties of the position. In the retail environment, where employees often work alone in a store, this case supports the argument that physical restrictions that impact customer service may not have to be accommodated depending on the circumstances. More bluntly stated, customers should not be turned away because of an accommodation in place for an employee.

However, this decision does not mean that employers should automatically deny requests for accommodation if an employee’s duties are impacted or there is some impact on customer service. In this decision, the employer had a history of accommodating this employee. The employer undertook an individualized assessment and had dialogue with the employee as is required under the Code. There was a written record that the employer could rely on to demonstrate its efforts and the difficulties in accommodating the employee (who worked alone 19.5 hours per week). WSIB had concluded that the worker should be re-trained. In short, there was evidence that the employer had taken reasonable steps to discharge its accommodation obligations. That written record, made it easier for the Tribunal to find in the employer’s favour.

By Daniel Pugen

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Employer Advisor, McCarthy Tétrault LLP

Employment and labour lawyers at McCarthy Tétrault LLP
McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more
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