Duty to Accommodate Disabled Employee

Every employer has a legal obligation to accommodate medically disabled employees. This issue usually arises due to a human rights complaint following either a termination of a disabled employee or the refusal to allow an accommodated return to work following a medical absence.

Basic Principles

Accommodation is the cornerstone of the human rights regime. Its purpose is to “ensure that an employee who is able to work can do so” and that “persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship”.^[1]

The objective is “to remove barriers of arbitrariness or stereotypical assumptions or attitudes about disability and to replace them with the mindset of inclusion”.^[2]

The obligation of accommodation is not limited to disability issues. It applies to all protected human rights.^[3] It does arise frequently with respect to disability cases which often is the subject matter of the leading cases on this subject.

The intent to discriminate is not the significant issue. The importance lies in the consequence of the conduct, as opposed to the intent.^[4]

A Cautionary Approach

This issue does not present as one of stark alternatives. The decision of accommodation is an exercise of prudent judgement. As noted by the Ontario Court of Appeal, it is a highly individualized process.^[5] Based on the issues at stake, the employer would be wise to be cautiously generous as to the assessment of what steps should be taken to accommodate. An error in the scale of what accommodation should be extended, apart from the social and human issues, will expose the decision maker to substantive financial and other liabilities.

Examples of Damage Awards

The breach of the duty to accommodate has led to the most significant awards of lost income allowed by human rights tribunals. The remedies for the failure to accommodate are nothing short of gargantuan.

For example, an Alberta case based on gender allowed for an award of $620,000.^[6] An Ontario case^[7]  set the lost income sum as 8.5 years back pay of $420,000 plus reinstatement due to the employer’s failure to accommodate the applicant’s disability by allowing for a return to work following her disability. The time clock for the lost income claim continued to tick pending the appeal made by the employer.^[8]

A similar lost income claim of 10 years in addition to a prospective income loss of an additional 5 years totaling $280,000 due a perceived disability was granted by the federal human rights tribunal.^[9]

The B.C. Tribunal awarded 6 years lost income to a medical doctor who had been delayed entry into a specialist program due to a mental disability. The lost income award amounted to $385,000.^[10]

The Test

To determine whether an evident discriminatory standard is a BFOR[11], the Supreme Court^[12] determined that the following three requirements must be present:^[13].

These three requirements are:

1. A rational job related purpose;
2. Which has been effected in good faith;
3. That was required to accomplish a legitimate work-related purpose.

It is within this third step that the duty to accommodate arises. To prove that the standard is reasonably necessary, it must be shown that it is “impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”. This does not mean that the employer must show it is impossible to accommodate. The employer, rather, must show it is impossible without undue hardship.^[14]

Should further accommodation be possible without undue hardship, then the standard will not be seen as a BFOR and the prima facie case of discrimination will stand.

The word “undue” demonstrates that some form of hardship is to be accepted. The factors of hardship were repeated to be an open forum but will include “the financial cost, the relative interchangeability of the workforce and facilities and the prospect of substantial interference with the rights of other employees”.^[15]

When considering ways in which an individual’s capabilities may be accommodated, “employers, courts and tribunals should be innovative yet practical when considering how this may best be done in particular circumstances”. Some issues to be addressed will include the following:

• Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
• If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
• Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards, reflective of group or individual differences and capabilities, be established?
• Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?
• Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
• Have other parties, who are obliged to assist in the search for possible accommodation, fulfilled their roles?^[16]

Workers’ Compensation & Human Rights Duties

The Supreme Court of Canada[17] has very recently concluded that this duty of accommodation must apply to the Quebec equivalent of Ontario’s Workers’ Compensation Act. Ontario’s statute does presently include a form of accommodation for a return to work, yet this statute is not full compliance with human rights requirements. The impact of this decision upon the Ontario law will be reviewed in the next posting.

Let Legal Advice Lead Your Actions

The issue of accommodation of a medical disability is a fundamental legal obligation. As an employer it is vital to understand and prepare for your legal obligations on a return to work. The failure to act in compliance with this onus can create enormous liability and hardship.

As an employee, you must understand the need to co-operate with the accommodation process. It is not a one-sided obligation.

Whether you be an employer or employee confronting this question of accommodation, let preventative legal advice guide your actions.

If you have questions about the duty to accommodate a medical disability, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

[1] The Supreme Court of Canada in its 2008 decision of HydroQuebec v Syndicat des employe-e-s de techniques professionnelles et de bureau d’Hydro-Quebec

[2] Bish v Elk Valley

[3] See the Supreme Court 1999 decision of BC (Superintendent of Motor Vehicles) v BC ( Council of Human Rights), referred to in most cases as “Grismer”.

[4] The Supreme Court of Canada in O’Malley v Simpsons-Sears Limited, a 1985 decision written by Mr. Justice McIntyre.

[5] Hamilton-Wentworth School Board v Fair

[6] Walsh v Mobil Oil

[7] City of Hamilton,

[8] This decision was affirmed by the Ontario Court of Appeal in May of 2016. The lost income claim, which is not set out in the reasons, appears to be roughly 12 years.

[9] Turner v Canada Border Services CHRT

[10] UBC v Kelly

[11] Bona Fide Occupational Requirement – a defence to the assertion of the need to accommodate

[12] The traditional analysis allowed a bona fide occupational requirement in a case of direct discrimination, but no such defence was available to a case of adverse-effect discrimination. This is no longer the case.

[13] Bona fide occupational requirement

[14] Coast Mountain Bus v CAW Canada

[15] British Columbia (Public Service Employee Relations Commission v BCGSEU, “Meiorin”; Some jurisdictions now set out in the statute what are the factors of undue hardship, as set out subsequently.

[16] As Sopinka J. noted in Renaud v Central Okanagan, supra, at pp. 992-96, the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union.

[17] Quebec v Caron