There is a limit to an employer’s duty to accommodate its disabled employees, the Supreme Court effectively confirmed on July 17th in Hydro Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43.

In this case, the Supreme Court overturned a decision of the Court of Appeal for Québec, clarifying the following points for employers:

  1. The employer is not required to prove that the employee will be totally unable to perform his or her work in the foreseeable future or that it is impossible to accommodate the employee’s characteristics to establish that its duty to accommodate has been met.
  2. An employer faced with a case of excessive absenteeism can take the entire situation into consideration, including the disabled employee’s record and all of the efforts already made in assessing its duty to accommodate.

Factual Context

The plaintiff, a unionized Hydro Québec employee, suffered from a number of physical and mental conditions that caused her miss work on a regular basis. In fact, the record showed that she had missed 960 days of work over the last seven and a half years.

The employer had made several unsuccessful attempts to adjust the employee’s working conditions so that she would be able to perform her work.

At the time of her dismissal on July 19, 2001, she had been off work for over five months, and her treating physician had recommended that she remain off work for an indefinite period. In addition, the company’s psychiatrist was of the opinion that the employee would not be able to return to work on a regular and continuous basis without continuing to have a significant attendance problem.

The arbitrator dismissed her grievance on the grounds that he did not believe the employee would be capable of performing regular and consistent work for the foreseeable future and that the solutions proposed by the union constituted undue hardship.

The Superior Court dismissed the union’s application for judicial review. However, the Court of Appeal allowed the appeal and reversed the arbitrator’s decision.

The decision of the Court of Appeal

The Court of Appeal concluded that Hydro-Québec had failed to prove that it had made every effort to accommodate the employee. The Court noted that this case had to be distinguished from other cases where it is obvious that the employee will be totally unable to perform any kind of work for the reasonably foreseeable future.

According to the Court of Appeal, even though the expert evidence showed a very poor prognosis, it also indicated that a return to work might be possible with drastic changes to the employee’s working conditions, and the employer had the duty to explore these options.

The Court of Appeal also concluded that Hydro-Québec had not been able to prove that, given the result of its psychiatric assessment of the employee, it was impossible to accommodate the employee’s characteristics. The Court of Appeal also emphasized the size of the company, which, in the Court’s opinion, made it easier for the company to create a position and schedule tailored to the disabled employee.

Finally, the Court of Appeal set out the following principle, which has since been invoked time and time again by unions and employees seeking to extend the employer’s duty to accommodate:

"The burden on the employer in defence of a [bona fide occupational requirement] is heavy […] The duty to accommodate requires the employer to be proactive and innovative, that is to say, it must make concrete efforts to accommodate or it must demonstrate that its attempts have been in vain and that any other solution, which must be identified, would impose an undue hardship."

The Supreme Court Decision

The Supreme Court disagreed with the reasoning applied by the Court of Appeal on two grounds; the first relating to the standard for proving undue hardship, and the second dealing with the appropriate time for assessing whether the duty to accommodate has been met.

The Standard for Proving Undue Hardship

The Supreme Court held that the employer is not required to prove that it is impossible to integrate an employee who does not meet its attendance standards, but only that doing so would result in undue hardship. What constitutes undue hardship can take as many forms as there are circumstances.

Therefore, the Supreme Court denounced the approach taken by the Court of Appeal, which would effectively have required the employer to prove the employee’s total unfitness for work to discharge its burden, stating:

"[t]he purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship."

According to the Supreme Court, the test applied by the Court of Appeal was therefore misstated because the duty to accommodate could not have the effect of completely altering the essence of the employment contract.

As such, the test is not whether it is impossible for the employer to accommodate the employee’s characteristics. Moreover, the employer is not required to change working conditions in a fundamental way, but rather to adjust the employee’s existing working conditions or duties, provided that this can be done without causing the employer undue hardship.

In all cases, if, despite the measures taken by the employer, the employee remains unable to perform his or her fundamental duties for the reasonably foreseeable future, the employer will have established undue hardship and will be justified in terminating employment.

In other words:

"[19] […]The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future."

Time of Accommodation

According to the Supreme Court, the Court of Appeal also erred when it held that the duty to accommodate had to be assessed at the point where the decision to terminate is made.

Following its decision in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, the Supreme Court opted for a global evaluation of the duty to accommodate that takes into consideration the entire duration of the employee’s absence.

Furthermore, it rejected the ‘compartmentalized approach’ taken by the Court of Appeal, especially given that, in this case, the employer had implemented a number of measures to accommodate the employee, which ultimately proved unsuccessful. All of these measures had to be taken into consideration.

The Supreme Court therefore allowed Hydro Québec’s appeal, therefore restoring the arbitrator’s initial decision.

Important Effects of the Decision for Employers

Clarifying the Employer’s Burden to Prove Undue Hardship

With respect to the employer’s burden to prove undue hardship, the following principles can be drawn from the Supreme Court’s decision:

  1. The employer is not required to prove that it is impossible to accommodate the employee’s characteristics, or that the employee will be totally unable to perform his or her work in the foreseeable future;
  2. A measure that would require the employer to modify working conditions in a fundamental way constitutes undue hardship;
  3. A measure that would completely alter the essence of the employment contract (i.e., the employee’s obligation to perform work) constitutes undue hardship;
  4. When, despite the measures taken by the employer, the employee remains unable to resume his or her work for the reasonably foreseeable future, the employer will be justified in terminating employment.

Taking into consideration the entire situation

In practice, this means that all prior unsuccessful attempts to accommodate the employee may serve to demonstrate that the employee will not be able to return to work in the reasonably foreseeable future, even if the employer did not know the nature of the employee’s illness at the time.

Moreover, this principle allows the employer to assess the employee’s attendance file globally, and it is not required to start its accommodation efforts over with each specific condition diagnosed over time.