To what extent does an employer need to fulfill its duty to accommodate employees with disabilities?
The duty of an employer to accommodate an employee’s needs based on the protected grounds, such as disability is mandated by federal and provincial human rights law such as the Alberta Human Rights Act. The duty to accommodate means that sometimes it is necessary to treat someone differently in order to prevent or reduce discrimination. For example, asking all job applicants to pass a written test may not be fair to a person with a visual disability. In such cases, the duty to accommodate may require that alternative arrangements be made to ensure that a person or group can fully participate. Other examples of accommodations for employees with disabilities can include: use of service dogs, access to wheelchairs, extended time off for illness and ensuring an allergen free work place. How can an employer ensure that it has fulfilled its duty to accommodate? When does an employer’s duty to accommodate end? When can an employer claim unjust hardship to terminate employees with disabilities?
Common law provides guidance on the scope of the duty to accommodate employees with disabilities. In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (S.C.C.) (Grismer), McLachlin J. explained that employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics.
The duty to accommodate is not unlimited; its scope in any particular case is defined by the symmetrical concepts of “reasonable accommodation” and “undue hardship”. In VIA Rail Canada Inc. v. Canadian Transportation Agency, [2007] 1 S.C.R. 650 (S.C.C.), the Court observed that undue hardship implies that there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate. According to the Supreme Court of Canada in Syndicat des employé-e-s de techniques professionnelles & de bureau d’Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil, [2008] 2 S.C.R. 561 (S.C.C.), at para. 19 “ the employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.” Deschamps J. in Syndicat des employés de l’Hôpital général de Montréal c. Sexton, [2007] 1 S.C.R. 161 (S.C.C.), stressed that what is involved is an individualized assessment process for duty to accommodate: “The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee, and the specific circumstances in which the decision is to be made. [para. 22]”
Therefore, the case law dictates that an employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future and an employer can terminate a disabled employee as long as the employer has taken reasonable steps to accommodate the employee to the point of undue hardship. Moreover, the accommodation process needs to be individualized.
If you have any questions regarding your employer’s duty to accommodate you at your workplace, do not hesitate to contact the award-winning Calgary Employment Lawyers at Osuji & Smith.
Author: Amit Chowdhury
