What is an Employer’s Duty to Accommodate?
Section 7 of the Alberta Human Rights Act prevents discrimination against an employee based on, among other things, physical and mental disability. An employer has a duty to take reasonable steps to accommodate its employee’s disability to the point of undue hardship. This is to ensure that the employee is not unfairly excluded from the workforce when his or work can be adjusted without undue hardship.
In certain circumstances, full accommodation may not be possible. However, the employer cannot arbitrarily offer an accommodation plan and ask the employee to accept it. The employer must consider the circumstances including the scope of duties, the specific needs of the employee, and the nature of the industry, and offer a reasonable accommodation solution. In other words, the procedure of accommodation is also important in determining whether the employer accommodated the employee to the point of undue hardship.
In Horvath v. Rocky View School Division No. 41, 2015 AHRC 5, a case about a caretaker who suffered from a permanent medical disability, the tribunal pointed out that the employer did not take more than cursory steps to explore the complaint’s capabilities or what accommodation might be necessary to allow her to return to work, and the employer was reluctant to consider both in terms of type of duties and duration of the accommodation. In this case, the tribunal noted that the employer must comply with its procedural duty to accommodate, and stated that the employer did not give sufficient consideration to the complainant’s continued potential to contribute to its workforce in an alternative position. The tribunal considered the following passage from ADGA Group Consultants Inc. v Lane, 2008 CanLII 39605 (ON SCDC) at paras 107-109:
The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. It could include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural” duty to accommodate…
More recently, in Labour Arbitration decision from British Columbia, Zellstoff Celgar Limited Partnership v. Public and Private Workers of Canada, Loc. 1, 2020 CanLII 69343 (BCLA), the arbitrator found that the employer breached its duty to accommodate the employee to the point of undue hardship by assigning him to a different position with a significant wage reduction, without first considering whether the original position could be modified, or whether other position with the similar pay were available.
Overall, the search for accommodation is a multi-party inquiry, and the employer and the employee should work together to find a reasonable solution. Should you have further questions, please do not hesitate to contact the award-winning Calgary employment lawyers at Osuji & Smith Calgary Lawyers.
Author: Justin Kwon
