When can employers draw the line? The duty to accommodate and undue hardship

December 17, 2014 Devry Smith Frank LLP Employee Relations, HR Policies and Procedures, Human Resources, Human Rights

In Perron v Revera Long Term Care Inc., 2014 HRTO 766 (CanLII), the Human Rights Tribunal held that an employer’s duty to accommodate does not include a duty to create a new position, fundamentally change working conditions, assign the essential duties of an employee with a disability to other employees or to hire another employee to perform them in the employee’s place.

Section 5 of the Human Rights Code, R.S.O. 1990, c. H.19, (the “Code) prohibits discrimination in employment. Section 17 of the Code provides that an employer has an obligation to accommodate an employee with a disability up to the point of undue hardship for the employer.
In 2009, Sandy Perron began working as a Personal Support Worker (“PSW”) in a nursing home, Revera Long Term Care Inc. (“Revera”). Sandy’s duties included:

getting residents up in the morning; assisting them with washing; dressing and personal care; taking them to the dining room and helping to feed them; putting linens and clothes out for next shift; taking the snack cart around twice a day; putting residents to bed as well as every two hours turning those who required it; and providing companionship.”

On April 4, 2012, Sandy stopped working because she was suffering from a back problem. She underwent surgery in August 2012.

In November 2012, Sandy contacted the administrator and executive director of Revera, to ask if she could return to work. Sandy provided the administrator with an Attending Physician Statement that indicated she could not lift from the floor to her waist or her waist to her shoulder. The Attending Physician Statement also indicated that Sandy could walk or stand for up to 20 minutes and she could sit up to 30 minutes.

In February 2013, it was determined that Sandy could not perform the essential duties of a PSW or of other positions in the nursing home including laundry aide, dietary aide and housekeeper.

On April 2, 2013, Sandy suggested that she could perform some of duties of a PSW, dietary aide and laundry aide. A Functional Capacities evaluation showed that Sandy could not meet the lifting requirements for any of the positions.

Revera considered creating a new position for Sandy that included some of the duties of each of the other positions. However, this would require Revera to have an extra PSW on a shift to perform the duties that Sandy was unable to carry out.

On August 21, 2013, Donna concluded that Revera could not provide a position that was suitable for Sandy given her disabilities. Sandy alleged that Revera discriminated against her by not allowing her to return to work and failing to accommodate her.

The Tribunal was satisfied that Revera met its duty to accommodate. It accepted Revera’s evidence that lifting beyond Sandy’s capabilities was an essential requirement of each of the positions. The Tribunal further concluded that there was no way to alter these requirements without adding extra staff to Sandy’s shifts and that providing a position for Sandy would cause undue hardship to Revera.

Read the decision here: https://www.canlii.org/en/on/onhrt/doc/2014/2014hrto766/2014hrto766.html

Written by Marty Rabinovitch and Joanne Schiffer (Student-at-Law)

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Employment and labour lawyers at Devry Smith Frank LLP

Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more.Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .