Accommodating employees with disabilities to the point of undue hardship under human rights legislation can be a complicated task. It’s important to make sure the accommodation process goes smoothly and the employee can focus on working as efficiently as possible, but employers may not be sure about what kinds of questions to ask disabled employees in order to meet their needs.
Employers should remember that employees also have a duty to work with the employer to reach an acceptable solution; they must communicate what they need in order to receive accommodation from the employer.
To meet their duty to accommodate to the point of undue hardship, employers may ask questions that help them to understand what the employee needs. Undue hardship means that some hardship is acceptable, but not so much that it would jeopardize the health and safety of others or bankrupt the employer.
What employers do not want to do is copy what the employer did in a case I read recently. In fact, this employer’s actions led to a finding of discrimination based on disability by the Canadian Human Rights Tribunal, and the decision was confirmed by the Federal Court.
In this case, the employee communicated her situation and her needs in order to return to work after medical leave, but the employer ignored her needs and did not attempt to accommodate her whatsoever. On at least two occasions, the employee, a senior bus driver, tried to reach a solution that would enable her to work with her medical limitations by having a varied work schedule. The employer insisted that it was essential to have a business operation that operated safely and securely seven days a week, twenty-four hours a day.
First, the employee requested, on her doctor’s recommendation, to work three days a week. In response, the employer put her in a part-time position with work assigned on an availability basis. After some recovery time had passed, she indicated that her doctor had authorized her to return to work five days a week but limited her to daytime work. The employer refused to return her to her full-time status, indicating that it would not do so as long as the limitations on her working hours remained. This was unusual since, prior to her leave, the employee worked day shifts on a regular route.
The tribunal found that the employer could not show it was impossible to accommodate the employee without experiencing an undue hardship. The employer presented no evidence to indicate what undue hardship it would suffer if it accommodated the employee’s needs. The accommodation requested on either occasions would not have negatively affected the employer’s operations at all.
The decision confirmed that if an employer 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, the employer has to do so to accommodate the employee. The employer’s standard to determine accommodation measures must consider factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship.
The Federal Court sent a clear message on how important it is to make a genuine effort to accommodate employees who suffer from disabilities. The case recommended that employers ask these important questions when faced with accommodation issues:
- Has the employer investigated measures that do not have a discriminatory effect, such as testing against an individually sensitive standard?
- If alternative measures were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
- For the employer to accomplish its legitimate purpose, is it necessary to have all employees meet a single standard, or could standards be established to reflect group or individual differences and capabilities?
- Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?
- Is the standard designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
- Have all parties who are obliged to assist in the search for possible accommodation fulfilled their roles?
I’m wondering, has your organization ever encountered a situation where you were asked to accommodate an employee who suffered from a disability? Did you explore alternative solutions together with the employee? Has your organization ever faced an undue hardship in a case of accommodation?
Christina Catenacci
First Reference Human Resources and Compliance Assistant Editor
Christina Catenacci, BA, LLB, LLM, Ph.D.
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