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 

In the June 2006 edition of Focus, we reported on a Court of Appeal decision[1] regarding the duty to accommodate. In this decision, the Court held that the employer had not established that it had contemplated all accommodation measures that were reasonably possible when he dismissed an employee. It consequently annulled the dismissal.

In a judgment rendered on July 17, 2008[2], the Supreme Court overturned this decision. It held that the Court of Appeal decision contained two errors of law, one relating to the standard for assessing undue hardship and the other relating to the time that is relevant in the determination of whether the employer has fulfilled its duty to accommodate.

In this case, an employee of Hydro Québec had a number of physical and mental problems. She was away on leave repeatedly and for extended periods of time starting in 1994. After a number of unsuccessful attempts to return to work (light duties, gradual return to work, modification of her workstation, part time work, assignment to a new position, etc.), she was dismissed for administrative reasons in July 2001 due to her especially high rate of absenteeism and her current and future inability to perform any reasonable amount of work on a regular basis.

The arbitrator dismissed the employee's grievance, finding that no accommodation was possible and that the employer had treated the employee correctly, displaying patience and tolerance. This arbitral award was confirmed by the Superior Court[3] but was overturned by the Court of Appeal.

According to the Supreme Court, the appeal questioned the interaction between the employer’s duty to accommodate a sick employee and the employee’s duty to do his or her work.

1) Standard for assessing undue hardship 

The Supreme Court reiterated that "the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work". However, "the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration".

According to the Supreme Court, undue hardship may not be assessed with the test as stated by the Court of Appeal namely the impossibility for the employer to accommodate the employee’s characteristics:

"The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work."

According to the Supreme Court, the employer will have established undue hardship if he shows that, despite measures taken to accommodate him, the employee, with chronic absenteeism, will be unable to resume his or her work in the reasonably foreseeable future. The employer does not have to prove a total unfitness for work in the foreseeable future. It stated the following:

"If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test."

2) Time of accommodation

For the Supreme Court, the duty to accommodate does not have to be assessed as of the time the decision to dismiss the complainant was made.

Indeed, it is necessary to take into account an assessment of the entire situation in a way that considers the entire time the employee was absent :

"A decision to dismiss an employee because the employee will be unable to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation. Where, as here, the employee has been absent in the past due to illness, the employer has accommodated the employee for several years and the doctors are not optimistic regarding the possibility of improved attendance, neither the employer nor the employee may disregard the past in assessing undue hardship"

Judgment of the Supreme Court of Canada: http://scc.lexum.umontreal.ca/en/2008/2008scc43/2008scc43.html