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Supreme Court Tinkers With Duty to Accommodate

I have often stated that dealing with disability-related absenteeism issues is the most challenging task a human resources person faces. The legal framework of the employer’s duty to accommodate is so hazy that even the courts have difficulty agreeing on what is required.
 
As an example, the Supreme Court of Canada has just released another decision attempting to explain the employer’s duty to accommodate an employee’s disability. I’m not certain this decision is any more practically useful to employers but, if nothing else, the Court does seem to have eased the accommodation threshold somewhat.
 
Back in 1999, the Supreme Court of Canada issued two landmark decisions which are now referred to as the “Meiorin” and “Grismer” decisions. These decisions drastically altered the approach which employers must take when dealing with employees whose characteristics call for accommodation. They form the basis for the present legal standard of accommodation.
 
In those cases, the Court determined that if an individual has demonstrated a prima facie case of discrimination, the employer must prove certain things in its own defence. In effect, the employer must prove that treating the individual in the manner it did was a bona fide occupational requirement.
 
To do so, the employer must demonstrate three things. First, it must prove it has adopted its approach or treatment for a purpose which is rationally connected to the performance of the job. If there is no rational relationship then the impugned approach will not stand up to scrutiny. An example of a generally appropriate purpose would be the protection of the health and safety of its employees.
 
Second, the employer must demonstrate it adopted its approach with an honest and good faith belief that it was necessary to the accomplishment of its purpose. Put another way, if the employer has adopted the approach not for good faith reasons but instead as a way of excluding or differentiating particular groups, the standard will fail.
 
Third, the employer must demonstrate that the approach itself is reasonably necessary to the accomplishment of the purpose. This is done by showing that it would have been impossible to accommodate the individual’s circumstances without suffering undue hardship. 
 
It is this third step that has been the basis for much debate. In the Supreme Court of Canada’s recent decision, it attempted to clarify what is required of employers.
 
The case involved an employee whose employment with Hydro Quebec was terminated after a long history of absenteeism. As a result of tendonitis, epicondylitis, bursitis, various surgical procedures, hypothyroidism, hypertension, and certain personality disorders, the employee missed 960 days of work in a span of seven and a half years. Considering that the average, full-time work year contains about 240 working days, it appears this employee was absent over 50% of the time during that span.
 
In July of 2001, she had been off work for approximately five consecutive months. Her physician recommended she stop working indefinitely. The employer obtained a psychiatric assessment which indicated she would no longer be able to work on a regular basis without a continuing absenteeism problem.
 
Up to that point in time, Hydro Quebec had actively attempted to accommodate her. It had even taken some steps to keep her actively employed which went beyond its contractual obligations. 
 
But, in 2001 Hydro Quebec concluded that she had displayed an inability to work on a regular basis and that no improvement in her absenteeism was expected. As a result, her employment was terminated and, in return, she grieved her dismissal.
 
The Supreme Court of Canada took this opportunity to re-frame the employer’s duty to accommodate. It started by emphasizing that the goal of accommodation is to ensure an employee who is able to work can do so. The purpose of the accommodation is to ensure that persons who are otherwise fit to work are not unfairly excluded when working conditions can be adjusted (without undue hardship to the employer).
 
Then, the Court got to the nitty-gritty of the test. It said the employer does not have a duty to change working conditions in a “fundamental” way but does have a duty to attempt to arrange the workplace to enable the employee to do his or her work. If the business can, without undue hardship, offer the employee altered working arrangements to ensure the employee can do his or her work, it must do so.
 
In the context of chronic absenteeism, the employer’s demonstration that (despite measures taken to accommodate the employee) the employee will be unable to resume work in the reasonably foreseeable future will discharge its burden to prove undue hardship.
 
Put another way, if the characteristics of an illness are such that the proper operation of a business is hampered excessively or if an employee with such an illness remains unable to work for the foreseeable future despite the employer’s accommodation efforts, the employer will have demonstrated undue hardship. 
 
As the Court stated, the employer’s duty to accommodate ends when the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future. In this case, the Supreme Court of Canada upheld the termination of the chronically absent employee.
 
With its Hydro Quebec decision, the Supreme Court of Canada may have provided the basis for yet another phase of interpretation of the duty to accommodate. It’s not apparent to me that this edition will be any easier for employers to understand or to apply in practice.
 
 
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.