An employer must accommodate an employee with any kind of health concern—whether physical or mental—up to the point of undue hardship.
“The right to accommodate is a human right,” said Michael Lynk, an associate professor and associate dean of The University of Western Ontario’s Faculty of Law, speaking Thursday at The Canadian Institute’s forum on The Duty to Accommodate.
But avoiding undue hardship is the right of the employer. And there are seven factors, Lynk said, that can be seen as a pyramid in terms of their success as a hardship defence for the employer.
At the top of the pyramid is safety, which is the most successful defence for the employer. But it has limitations, said Lynk. “You have to be cautious of blanket rules in the workplace. They still need to be reviewed or altered in order to allow an accommodation duty to take place.”
In the Bhinder case (1985), for example, the court ruled in favour of the employer (Canadian National Railway) for terminating Mr. Bhinder (an observant Sikh, who wouldn’t wear anything over his turban for religious reasons) for not wearing a hard hat when making occasional visits to worksites as part of his job.
However, five years later, the Supreme Court stated it would have come to a different decision. While the issue of the hard hat is a clear safety obligation, the question is who is going to be accommodated? “What is the realistic danger to the employee himself? Mr. Bhinder knew the danger. What is the danger to other employees? None,” said Lynk.
Lynk said the Supreme Court has to allow a “tolerable range of risk” if there’s conflict between a safety rule and an accommodation rule. In such a case, human rights obligations would trump health and safety, he said.
The next two—impact on collective agreement and legitimate operational requirements of workplace—are not as easily upheld, but there are situations where these would pass as a defence.
An employer has to look strenuously to find an accommodation that won’t impact on a collective agreement. For example, the collective agreement may state that seniority prevails in filling a vacant position. However, if there is a junior employee with a bad back and that vacant position could accommodate him (e.g., the position does not require heavy lifting)—and there is no other available accommodation for that disabled employee—then the employer has to accept the accommodation in the circumstance, said Lynk.
For legitimate operational requirements of the workplace, there have been a range of rulings by arbitrators that have found instances when the accommodation has been denied, Lynk said. For example, religious accommodation in the workplace: if the employee’s faith has 10 holy days (they fall on workdays) and he wants all 10 days off, employers should look to their practice in the workplace. If the employer follows the three main statutory holidays for the dominant faith (Christmas, Good Friday and Easter Monday), then the employee of the “minority faith” should be allowed only three paid holidays.
The last four—size, interchangeability of workforce, employee morale and cost—are rarely upheld in court.
The feeling is the larger the size of the employer, the more likely the employer will be able to find an accommodation for the employee.
Regarding interchangeability, the larger the employer, the wider the range of different classifications of work it will have in which to accommodate an employee.
Although employee morale (other employees objecting to the employee’s accommodation) has been accepted in about half a dozen cases, Lynk said there have not been many recent cases.
Of any studies that have been done in Canada and the U.S., the bulk of accommodations cost nothing, said Lynk, adding that about 60% of accommodations cost nothing and roughly 35% cost less than $1,500. “Virtually in the range of what any employer could afford.” Unless the cost amounts to a significant amount (i.e., it affects the viability of the operation), then cost will not hold up as a legitimate defence by the employer, he continued.
Lynk left the audience with four questions that HR managers should ask to begin the duty to accommodate process.
1. Can the employee still do 100% of their current job duties?
2. Can the employee do the core aspects of their job in a rebundled or repackaged way?
3. Can the employee do 100% of another job in the workplace?
4. Can the employee do the core aspects of another job in the workplace in a rebundled or repackaged way?