These principles re-state, in a more concise form, the essence of the recent Supreme Court judgements: "The duty to accommodate derives from the right to equal treatment under the Ontario Human Rights Code.
That duty includes "not only the duties and requirements associated with current jobs but also the duties and requirements associated with a bundle of existing tasks within the ability of a disabled employee." The undue hardship test, which, if applicable, relieves the employer from accommodation requirements, requires the employer to do more than bear trivial or de minimus costs to accommodate the needs of a disabled employee.
If the employee cannot, then determine if he or she can perform his or her existing job with modifications.
If the employee cannot, then determine if he or she can perform another job in its existing, modified or "re-bundled" form. The Extent of the Employer's Duty The considerable weight that the duty places upon the employer is demonstrated in a recent award from Alberta.
The results of this comparison will vary from case to case.
The employer bears the burden of proving that the accommodative measures would amount to undue hardship. Boundaries on the Employer's Duty to Accommodate The duty to accommodate in Canadian labour law is not limitless.
But this much is clear to date: The duty requires more from the employer than simply investigating whether any existing job might be suitable for a disabled employee.
The employer is not required to accommodate where undue hardship would result, nor is it obligated to create an unproductive position.The footnotes from Professor Lynk's article have been removed from this publication. The Employer's Duty to Accommodate The essence of the duty is simple to state: Employers in Canada are required to make every reasonable effort, short of an undue hardship, to find an accommodation for an employee with a disability.Its outer boundaries, however, are much harder to determine.Having determined that the grievor could not perform any existing job, the employer was obligated to turn its attention to whether, and in what manner, existing nursing jobs could have been adjusted, modified or adapted short of undue hardship to the hospital in order to enable the grievor to return to work despite her physical limitations." As part of the remedy, the board ordered the hospital to "conduct a thorough examination of its work place in order to ascertain how, without incurring undue hardship, it can adapt or modify a nursing job (or jobs) so that the grievor's physical disability can be accommodated." Other recent labour arbitration awards have reinforced this point.In Re Greater Niagara General Hospital, the arbitration board ordered the employer to re-examine existing positions in a nursing unit to determine if they could be re-structured into a new "bundle of duties" that would allow the grievor, a nurse, to work within the limitations of her permanent back injury.In its award, the board said it is not sufficient for the employer to show that its employee could not perform any of the current job descriptions.