An employer’s duty to accommodate is a difficult concept to master.  A recent decision from Alberta, Horvath v. Rocky View School Div. No. 41, notes the significance of the employer’s response in the accommodation process.  The decision discusses both the response to the request in this particular case, as well as a general policy on permanent restrictions requiring accommodation.

What happened?

Ms. Horvath was employed as a caretaker for the Rocky View School Division No. 41 (the “employer”). She dislocated her right shoulder at work and required surgery. Following surgery, a period of leave, and rehabilitation, the Workers Compensation Board determined that Ms. Horvath was fit to return to work and could perform modified duties with temporary restrictions. However, her surgeon determined that the medical restrictions would be permanent. The employer said it did not have a suitable permanent position for Ms. Horvath given this limitation and terminated her employment.

What did the Tribunal say?

The Tribunal confirmed that Ms. Horvath had a disability and required accommodation.  The question then turned to whether the employer had accommodated Ms. Horvath’s disability to the point of undue hardship.

Because the employer had terminated Ms. Horvath’s employment, the burden fell on it to demonstrate undue hardship. The Tribunal did not accept that the employer had accommodated Ms. Horvath to the point of undue hardship because the employer “did not take more than cursory steps to explore what accommodation might have been necessary to allow Ms. Horvath to return to work with permanent restrictions.”  That was a problem.  Furthermore the employer had a policy of not providing permanent accommodation, which the Tribunal found had “no justification in law and placed arbitrary and unwarranted restrictions on the employers duty to accommodate.” Finally, the Tribunal concluded that the employer failed to consider alternatives for Ms. Horvath. Had the employer attempted to evaluate Ms. Horvath’s ability to contribute meaningfully to the workplace in relation to other work or positions within its more than 40 schools, the Tribunal believed reasonable and practical options would likely have become apparent. Because the employer focused solely on returning Ms. Horvath to the duties of her position, the Tribunal concluded that there was no foundation on which to plead undue hardship.

After a detailed analysis, the Tribunal concluded that the employer discriminated against Ms. Horvath because of her disability and awarded Ms. Horvath $44,658.48 in lost wages, and $15,000 as compensation for distress and injury to her dignity.

What does this mean for employers?

Employers must always be aware of their duty to accommodate employees with a disability, but this case highlights two important points to keep in mind:

  1. Even if an employer thinks accommodation may not be possible, it should fully explore the possibilities.  A cursory consideration could result in a finding of discrimination.
  2.  An employer cannot safely rely on a policy that restricts possible accommodation without considering whether the effects of the policy could result in discrimination.