The right to accommodation at work in Canada is not absolute. Employers can terminate or suspend disabled employees. Employers only have an obligation to accommodate disabled employees up to “undue hardship”. Thus, the question becomes, what is undue hardship?
Undue hardship is a fluid, case-by-case contextual examination of any of number of factors that measure the burden of accommodation versus the reasonable ability of the employer to make the accommodation.
The most oft cited factors used to examine the burden of accommodation include:
- financial cost;
- Whether the basic obligations of employment are achievable for the foreseeable future;
- safety issues;
- departure from employment contracts;
- the prospect of interference with other employees’ rights;
- problems of morale of other employees; and
- interchangeability of workforce and facilities.
The most oft cited factors used to examine the reasonable ability of the employer to make the accommodation include:
- The size of the employer’s operation;
- The nature of the employer’s operation;
- financial means of the employer’s operation; and
- the magnitude of the safety risk (if applicable).
But there are an endless number of other factors the courts will consider in measuring the burden of accommodation versus the reasonable ability of the employer to make the accommodation. In that regard, any fact that applies in each case should be considered.
After adding up the various factors regarding the burden of accommodation and the various factors regarding the reasonable ability of the employer to make the accommodation, the employer needs to conduct a “balancing test” of both sides to determine whether it would cause undue (i.e. significant) hardship (i.e. difficulty) to accommodate the employee. The courts have cautioned however that the term “undue” does not mean “any” hardship. Rather, the hardship must be significantly difficult. After all, it is not always undue hardship just because the duty to accommodate in a specific case requires extra obligations and certain financial costs. At the same time, generally, an employer does not have to “create a new position, fundamentally change working conditions, assign the essential duties of an employee to others or change the essential duties and requirements of a position so that an employee can meet them.” (Canadian Employment Law, 33:40)
The balancing test conducted by the employer (or the employer’s lawyer in complicated cases) must take account all facts and apply common sense. In that regard, a well-documented investigation with a written analysis of both sides (employer’s burden vs ability to accommodate) needs to be conducted. If an employer can show that it took all steps reasonable to consider the accommodation, it will have a much better chance of winning a discrimination application at the Human Rights Tribunal. Concrete evidence is key.
Moreover, it should be noted that a termination need not be the only outcome of an employer’s finding of undue hardship. Rather, the employer can suspend employment until the employee recovers to such a degree that they can be accommodated without undue hardship.