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Objective evidence required when attempting to limit or deny an employee’s accommodation request

duty to accommodate

Recent Ontario human rights jurisprudence has reaffirmed many of the principles associated with the employer’s duty to accommodate. In particular, when assessing accommodation requests, employers need not apply/accept each accommodation request, but must ensure that they are only denying or limiting lawful accommodation requests in the presence of sufficient evidence to support the limitation or denial.

In a recent 2018 arbitral decision, International Brotherhood of Electrical Workers, Local 636 v Tyco Integrated Fire and Security Canada Incan employee with type 1 diabetes was denied the ability to test his blood sugar glucose levels and administer insulin in his personal office. The employer required the employee to leave his cubical and use a private office to administer insulin and test his blood sugar glucose levels. This is a process that people with diabetes are required to complete multiple times a day. Only in the event of an emergency was the employee allowed to self-administer his medications in his cubicle. The employer attempted to justify these limitations citing health and safety concerns.

The employee’s union filed a grievance on behalf of the employee alleging violations of the collective agreement and the Ontario Human Rights Code (the “Code”). Arbitrator Trachuk found the employer’s limitations were discriminatory because “it is based on the assumption that his diabetic care poses a risk to his co-workers and that is not supported by objective evidence.” The arbitrator also found that the employer had imposed an adverse impact on the employee, citing the employee’s feelings of alienation and feeling generally unwelcome in the workplace.

Employers should note the arbitrator’s rejection of the undue hardship claim, alleging health and safety concerns. While employers have a duty to accommodate employees to the point of undue hardship, the available defence has been established as a high threshold for employers to demonstrate. The Code prescribes only three considerations when assessing whether an accommodation would cause undue hardship: cost; outside sources of funding (if any); and health and safety requirements (if any). Ultimately in this case, the employer failed to provide sufficient medical evidence to support the alleged health and safety concerns underlying their undue hardship defence. Objective evidence is required to limit or deny an employee’s lawful accommodation request.

This principle was reaffirmed in the 2019 case, Skedden v ArcelorMittal Dofasco, where the employee was on leave following a hip replacement surgery. Upon the employee’s return, the employer advised him that there was no suitable modified work available, and they would have to look for other positions within the company. Vice Chair Best found the employer’s conclusion that the employee was unable to perform the essential duties of his job was not supported by objective evidence. The employee could have been accommodated within his previous position. As such, the employer was found to have violated the Code and ordered to pay the employee over $16,000 in lost wages and $15,000 as monetary compensation for injury to dignity, feelings, and self-respect.

In a case such as the above, the employer may have been better served to have gathered greater information, such as requesting the employee’s practitioner fill out a functional abilities form or request the employee undergo an independent medical examination.

Collectively, these cases reaffirm many of the duty to accommodate principles in Ontario, where there is: (i) a high threshold for employers to successfully claim undue hardship; and (ii) employers should ensure that they are only denying or limiting lawful accommodation requests in the presence of sufficient evidence to support the limitation or denial.

By Simmy Sahdra

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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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