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Workshop on Duty to Accommodate Policy


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III. Undue Hardship

"[In order to establish an exception to the duty to accommodation] ...it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost." 

Canadian Human Rights Commission

Undue hardship occurs if accommodation would create onerous conditions for an employer or service provider, especially regarding health, safety and cost. In addition, in Central Alberta Dairy Pool, supra, the Supreme Court listed some other factors that might be relevant to determining whether the hardship resulting from an accommodation measure should be considered "undue" (D/438, para. 63):

  • disruption of a collective agreement; 
  • problems of morale of other employees; 
  • interchangeability of work force and facilities.

For full details on this case, see www.workink.com

We will briefly look at these factors, as well as how the size of the operation influences what may be considered as "undue hardship." Remember that the onus is on the employer to prove "undue hardship." Jurisprudence continues to redefine the interpretation of what factors are most relevant in assessing undue hardship in a given context. Several factors have been examined, including the following:

  1. Health and safety concerns:

    The issues to examine here are whether the proposed accommodation would pose a safety risk to:

    (i) other employees or

    (ii) the employee seeking an accommodation.

    For example, if an employee with a significant substance abuse problem operates safety-sensitive equipment (i.e., a forklift in a warehouse), then the employer may be justified in relying upon the potential danger to other employees, or even to the employee himself or herself, as a compelling undue hardship factor. However, if the only safety issue is to an employee himself or herself, then the undue hardship threshold will be usually much higher.

    Where health and safety is a concern, both the level of risk and who bears that risk must be considered.

    • Will the accommodation violate health and safety regulations?
    • What are the liability implications?
    • Who can I go to for advice?

    Co-worker morale problems that can be directly linked to the accommodation could also be grounds for undue hardship due to health and safety reasons. For example, modifying the job duties of one person to accommodate them may create a health or safety risk for other employees. This may be due to the negative impact of increased workload, a higher proportion of heavy duties, or unreasonable overtime.

  2. Financial costs:

    Financial costs must be so significant that they would substantially affect the viability or productivity of the employer (or service provider) responsible for the accommodation. When considering "Financial costs" as grounds for undue hardship, these items usually cannot be included:

    • the expense of complying with other legislation or regulations, such as building codes (e.g., providing wheelchair accessible washrooms);
    • overtime or leave costs that the employer can tolerably bear;
    • expenses incurred to respond to a grievance or a minor disruption to a collective agreement.

    The size of the employer affects the case for undue hardship. The larger the operation, the more likely it is that it can afford to support a wider range of responses for a person seeking accommodation, as it can more easily absorb the cost of accommodations and amortize these costs.

  3. Disruption of operations:

    An accommodation could be such an inconvenience that it would prevent the employer or service provider from carrying out essential business. For example, modifying a workspace in a way that substantially interferes with workflow and reduces efficiency may be considered disruptive to a point of undue hardship.

  4. Substantial interference with the rights of others:

    A proposed accommodation should not interfere significantly with the rights of others or discriminate against them. The objections of others must be based on well-grounded concerns that their rights will be affected. For example, a substantial departure from the terms of a collective agreement could be a serious concern.

    Note that unions can also be liable if they unreasonably block an employer's attempt to accommodate a person, or create barriers through the negotiation of contracts or design of union procedures.

  5. Interchangeability of work force and facilities:

    This refers to whether an employer could reasonably relocate employees to other positions on a temporary or permanent basis. This usually is easier for a larger company.

  6. Example of undue hardship proven by the employer:

    Undue hardship is very hard to prove for an organization as large, diverse and financially sound as the federal government. However, where the employer can demonstrate that it has explored every available, reasonable step to provide an accommodation short of undue hardship, then the duty to accommodate will usually demand no more.

    Example: Holmes v. Attorney-General of Canada.

    A pay clerk (CR-03) working for the federal government developed severe numbness and pain in her right shoulder, making it difficult to perform her duties. After trying to accommodate her, Holmes was released because of incapacity to perform her duties. She filed a complaint with the Canadian Human Rights Commission, which found that the employer had taken reasonable steps to accommodate her. On judicial review of the Commission's decision, the Federal Court, Trial Division upheld the denial to take the complaint to the CHR Tribunal. The Holmes case is one specific to the Federal Public Service. There are also a number of more recent cases.

    In its decision, the Court noted that the Department had, prior to recommending that she be released, taken the following steps:

    1. Assigned Holmes other duties as a receptionist. This proved to be unsatisfactory, as Holmes was unable to handle a typing load.

    2. For almost one year, assigned her only limited and lighter duties as a pay clerk.

    3. Assigned Holmes to a special project to facilitate her recovery, and provided her with an adjustable chair, an adjustable monitor screen arm, step stools, a tray to raise her keyboard and push carts for moving files. She still could not keep up with the work demands.

    4. Had Holmes assessed twice by Health Canada, who said Holmes could do sedentary work, and could do her substantive duties on a part-time, reduced basis. Holmes' physician disagreed, but said Holmes was capable of regular, gainful work in another placement.

    5. Again, assigned Holmes only light duties. Nevertheless, on many days, she was unable to perform any of her duties;

    6. Met with Holmes about other work options and offered Holmes three hours per day for a period of three weeks to undertake either a job search or a recommended rehabilitation program. She was asked to present the Workers Compensation Board with a rehabilitation program but did not, so her case was closed.

    7. Tried to find Holmes another job by placing her resume on the Departmental Transfer Inventory at the Public Service Commission. All vacant positions within the Department for which Holmes was qualified were reviewed. However, all concerned concluded that these positions required the use of the same muscles as those employed in her substantive position.

    8. The Federal Court stated that the undue hardship standard: "…does not require that an employer act as a placement officer or create a new position expressly for the disabled employee comprising new duties that were previously non-existent and that do not suit its need…(and) …The employer's obligation is to make a genuine effort to accommodate an employee, efforts that are consistent with the type of work for which the worker was hired."



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