Canada: Accommodation — How Far Must Employers Go?

Originally published in Blakes Bulletin on Labour & Employment – February 2005

Canadian human rights legislation prohibits employers from discriminating against employees on various prohibited grounds. One of the most difficult challenges for employers is fulfilling the duty to accommodate employees to the point of undue hardship. Recent trends demonstrate that discrimination and accommodation issues are increasingly complex, forcing employers to consider questions they are not always well-equipped to answer. For example, aging workforces, treatment of individuals with cognitive and psychological disabilities, and employees’ child care concerns have become hot-button issues in the law of accommodation. Applying the concepts of discrimination, accommodation and undue hardship to the real world is not an easy task for most employers.

Courts, tribunals and arbitrators are often given the difficult task of balancing the right of an employer to manage its operations and an employee’s interest in accessing the workplace in a meaningful fashion. Some of these cases are discussed below.

The Current Legal Framework

According to the Supreme Court of Canada, to assess whether an employer is in breach of human rights legislation, it must first be determined if a workplace policy or decision is prima facie discriminatory. In deciding this, an employer’s intention in implementing the policy or decision is irrelevant, as is whether any discriminatory effect is direct or indirect. Following a finding that an employer’s action is prima facie discrimination, the action can only be justified if a decision-maker answers “yes” to these three questions:

• Is the policy or decision consistent with a bona fide occupational requirement? That is, is the policy or decision rationally connected to the performance of the affected individual’s job responsibilities?

• Was the policy or decision undertaken in good faith, pursuant to the employer’s honest belief that it was necessary to achieve a legitimate work-related purpose?

• Was the policy or decision reasonably necessary in order to accomplish the legitimate work-related purpose?

Most analysis tends to focus on the third question — whether or not the policy is reasonably necessary to achieve an employer’s legitimate goals. An employer’s discriminatory policy or decision will only be “reasonably necessary” if it would be impossible to accommodate affected employees in a non-discriminatory manner without creating circumstances of undue hardship for the employer. As such, despite the Supreme Court’s seemingly straightforward test, employers end up going full circle back to the question of what accommodation actually means in any given situation.

It is clear that an employer’s duty to accommodate has both procedural and substantive aspects. On the procedural side, an employer has an obligation to undertake a thorough and good faith analysis of any situation where accommodation may be required. An employer must ensure it understands an employee’s needs and makes an effort to consider the implementation of all possible accommodation measures. Of course, an employer should be diligent in documenting its assessment of the employee’s needs and measures considered to demonstrate it has discharged this procedural aspect of its duty to accommodate.

On the substantive side, an employer has an obligation to actually implement accommodation measures, where to do so would not lead to an undue hardship. Such measures are highly dependent on the circumstances of each individual case, but may include modifying the employee’s work environment, schedule, job duties or, in some instances, providing the employee with an alternate position within the organization.

In assessing whether the implementation of accommodation measures would result in an undue hardship to the employer, various factors must be considered. These include the cost of the accommodation, health and safety implications, the size of the employer’s operations, its resources and flexibility, as well as factors relating to workplace morale and the disruption of rights provided for under a collective agreement.

Given these factors, there are no “cookie-cutter” solutions to accommodation dilemmas. The exact nature of an individual employee’s circumstances and an employer’s operations means that the definition of undue hardship will vary from case-to-case. As the Supreme Court has clearly stated, the content of accommodation and definition of undue hardship must be assessed with common sense and flexibility.

Several recent cases are worth noting because they serve to demonstrate that although the duty to accommodate creates significant employer obligations, the duty is not without limits. A discussion of these cases follows.

McAlpine v. Econotech Services Ltd.

In McAlpine v. Econotech Services Ltd., the British Columbia Court of Appeal held that the duty to accommodate does not require an employer to significantly “delete” work duties from a position occupied by a disabled employee.

The plaintiff, Ms. McAlpine, was a long-service employee who held a management position in Econotech’s Fibre Testing Department and had significant client contact, as well as supervisory and business development responsibilities. In 1992, she went on medical leave for depression.

In 1995, the parties agreed Ms. McAlpine should commence a gradual return to work program. She became responsible for reading slides for species identification. She performed this work at home on a fee-per-slide basis to relieve any time pressure. She worked approximately 10 hours per week. Later in 1995, Econotech asked Ms. McAlpine to come back to work in the office in her old position. Ms. McAlpine declined any changes or increase in her workload. Medical information indicated that she remained unable to carry out significant aspects of her job description, including the managerial duties.

Throughout early 1996, Ms. McAlpine continued to resist any request to resume the tasks associated with her original position. She also failed to provide updated medical information to Econotech. A request for the resumption of long-term disability benefits was denied, despite Econotech’s assistance in advancing her claim. Ms. McAlpine then asked Econotech for an early retirement package. When Econotech refused, she brought an action in the B.C. Supreme Court claiming she had been constructively dismissed.

The trial judge denied Ms. McAlpine’s claim. He found that, due to her illness, she was simply unable to perform the duties required by her position and had no right to dictate new or changed terms of employment. Econotech had discharged its duty to accommodate Ms. McAlpine by making considerable efforts to return her to work in her original position.

On appeal, the British Columbia Court of Appeal issued a unanimous judgment agreeing with the trial judge. The appeal court found that there was no express or implied term in Ms. McAlpine’s contract of employment which required Econotech to continue to employ her in a non-managerial position. To the extent that such an obligation existed, it arose by virtue of the B.C. Human Rights Code, which required Econotech to accommodate Ms. McAlpine’s disability. After commenting on Econotech’s laudable attempt to accommodate Ms. McAlpine and her continued inability to resume her managerial duties, the appeal court ultimately concluded Econotech had discharged its duty to accommodate such that there had been no constructive dismissal of Ms. McAlpine.

This case is unique in that it considers an employer’s duty to accommodate in the context of a contractual claim. The appeal court was ultimately asked whether the duty to accommodate requires an employer to transfer a disabled employee to an alternate position or to create a new position for the employee by deleting a number of essential functions the individual was originally performing from his or her job description.

Prior decisions tackling this question have come to various answers. A number of the decisions provide that the duty to accommodate may require an employer to assign a disabled employee to an alternate position or to bundle together productive tasks to create a new position for that employee. In most instances, such accommodation is considered in light of the potential undue hardship it might impose on the employer. This case will no doubt be cited in others as articulating a limit on an employer’s duty to accommodate, particularly with respect to managerial employees.

Shelter Regent Industries v. Industrial, Wood and Allied Workers of Canada, Local 1-207 (Marples Grievance)

In this case, the arbitrator’s decision focused on an employee’s obligations to provide information and request accommodation in upholding an employer’s decision to dismiss an employee for excessive absenteeism.

The grievor, Mr. Marples, was employed as a roof sheeter by Shelter Regent Industries in Alberta. His employment was terminated for excessive absenteeism in November 2002. From 1997 to 2002, Mr. Marples’ absenteeism rate ranged from 16% to 45% of the days he was scheduled to work and he had received a number of verbal and written warnings regarding his attendance. At first, the root cause for his absenteeism was unclear, although he complained of stomach ailments, including an acid reflux condition and gall stones.

Following an extended disability leave in 2001, Mr. Marples commenced treatment for substance abuse, which was supported by SRI and recommended by its insurer. Mr. Marples participated in Alcoholics Anonymous and an Alberta Alcohol and Drug Commission Program. Mr. Marples and SRI also entered into an agreement, addressing his substance abuse problem and his need for rehabilitation. The agreement provided for the release of medical information to SRI and required that Mr. Marples attend all medical treatments and appointments and seek advance approval of any absences.

Six months after his return to work, however, Mr. Marples began drinking and using drugs again. On May 29, 2002, he received what proved to be his last warning letter from SRI. It stated that his chronic absenteeism was unacceptable and must be corrected, although it stopped short from clearly stating continued absenteeism would lead to dismissal. The letter also offered to “help” him “rectify this problem.” His employment was eventually terminated following a 4-day absence. SRI requested a doctor’s note with respect to that absence, but none was provided.

At the arbitration hearing, the union argued SRI had failed to accommodate Mr. Marples’ substance abuse disability and that he should therefore be reinstated. Mr. Marples also testified that following his dismissal, he had come to grips with his substance abuse problem and changed his lifestyle.

The arbitrator applied the test for dismissal for innocent absenteeism by asking:

One. Was the absenteeism excessive?

Two. Was the employee warned that his or her absence was excessive and failure to improve would result in discharge?

Three. Was there a positive prognosis for regular future attendance at the time of dismissal?

Four. If the absenteeism was caused by illness or disability, did the employer attempt to accommodate the employee to the point of undue hardship?

The adjudicator found that there was ample evidence that Mr. Marples had been warned that his absences could result in his dismissal. The adjudicator also held that, although Mr. Marples had made substantial progress in dealing with his substance abuse problem following his discharge, there was no evidence known to SRI at the time of dismissal that his attendance would improve in the future.

The last issue for determination at the hearing was whether SRI discharged its duty to accommodate Mr. Marples. Although the adjudicator came to the conclusion that Mr. Marples had a substance abuse problem that could give rise to a duty to accommodate, he also held that: “just because an employee has an illness or disease, does not mean that he is automatically entitled to accommodation, however. An employee must bring the illness to the attention of his employer in a timely manner unless the circumstances prevent him from doing so. The Grievor said nothing about his continued alcohol and drug abuse during or following his treatment in 2001 and said nothing of his substance abuse when he was terminated.” The adjudicator denied Mr. Marples’ grievance.

This case emphasizes that accommodation is a two-way street. Employees, not just employers, have obligations to assist in defining accommodation measures. Specifically, employees have an obligation to provide information setting out the nature of their disability and must, in most circumstances, request accommodation. The employer still remains obliged to act in good faith and demonstrate a willingness to consider and assess the employee’s condition once that condition is brought to its attention.

Health Services Assn. of British Columbia v. Campbell River and North Island Transition Society

In this appeal from an arbitration decision, the British Columbia Court of Appeal was forced to tackle the content of an employer’s obligation to accommodate an employee’s childcare obligations when modifying work schedules.

The grievor, Ms. Howard, held the position of Child and Youth Support Worker at a shelter for abused women called the Transition Society. She worked from 8:30 a.m. to 3:00 p.m. on a part-time basis. Ms. Howard had four children, one of whom had severe behavioural and psychiatric problems requiring substantial parental supervision following his return home from school in the evenings.

After Ms. Howard had worked for the Transition Society for approximately 8 years, she was notified that her hours would be changed such that she would be scheduled to work from 11:30 a.m. to 6:00 p.m. The Transition Society wanted to modify Ms. Howard’s work hours so that counselling services could be offered to a greater number of school-aged children in the afternoons.

Soon after the change was announced, Ms. Howard attended a meeting of the Transition Society Board of Directors and expressed her concerns about the modified hours. She also submitted a report from her son’s paediatrician explaining his special needs. The Transition Society decided that the modified hours were to be maintained, although the issue would be reassessed again in six months. Following receipt of a letter to this effect, Ms. Howard had a severe panic attack and her doctor subsequently advised the Transition Society that she would be unable to return to work for six weeks due to a stress disorder. Ms. Howard never did return to work, claiming that the Transition Society had failed to accommodate her family status in accordance with the B.C. Human Rights Code.

There was clear medical evidence before the arbitrator that Ms. Howard’s supervision of her son after school was vital to the management of his behavioural and psychiatric conditions. From a legal standpoint, it was also clear that the prohibition in the Code against discrimination on the basis of “family status” included discrimination relating to the parent and child relationship. The arbitrator was therefore required to determine whether the prohibition against discrimination based on family status restricted an employer’s ability to modify shift schedules in consideration of an employee’s childcare obligations.

The arbitrator answered this question in the negative. In his opinion, “family status” referred to the very status of being a parent and not to the individual childcare needs of an employee. Ms. Howard appealed to the B.C. Court of Appeal. In a unanimous decision, the Court allowed the appeal and remitted the grievance back to the arbitrator.

The Court rejected the arbitrator’s conclusion that “family status” meant only the status of being a parent or in a family relationship. It said a determination of whether family status discrimination has been established must be made on a case-by-case basis and must consider the impact of the employer’s action on the employee’s particular family obligations. After considering the particular circumstances of Ms. Howard and her son, the Court concluded that prima facie discrimination did exist in this case.

As there are very few cases that consider an employer’s obligation to accommodate an employee’s childcare obligations, the British Columbia Court of Appeal’s decision in this case is an important one. As employees continue to face the difficult task of balancing work and family, one can expect this issue to arise with greater frequency.

Conclusion

The current case law demonstrates that the duty to accommodate continues to impose considerable obligations on employers. However, the duty to accommodate is not without limits. The impact of these and other similar cases on the development of the law of accommodation remains to be seen.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.