In July 2008, Fraser Milner Casgrain LLP, published a special report on the recent Supreme Court of Canada decision 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 ("Hydro-Québec"). Hydro Québec offers a practical example of a situation where an employer provided reasonable accommodation to an employee to the point of "undue hardship".
In its decision, the Supreme Court of Canada affirmed the employer's duty to change working conditions in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The employer's duty ends where the employee is no longer able to fulfill his or her basic employment obligations for the foreseeable future, despite accommodation efforts. The trick remains ensuring that all possible avenues of accommodation, short of undue hardship, have been canvassed.
Hydro-Québec provides employers with some guidance, clarifying that an employer does not have to prove that accommodating the employee is impossible. An employer does have to prove that, despite exhausting best efforts to arrange the employee's workplace or duties to enable the employee to do his or her work, the employee will be unable to do so for the foreseeable future. Further, an employer does not have to prove a total unfitness for work. Instead, an employer does have to prove that accommodating the employee's illness or disability would excessively hamper the operation of the business, or prove that the employee remains unable to work for the reasonably foreseeable future despite accommodation efforts.
Does Hydro-Québec change anything for employers?
Unfortunately, the elusive standard of "undue hardship" remains. The Supreme Court of Canada stated that proof of undue hardship can take as many forms as there are circumstances. What remains clear is that establishing undue hardship requires serious consideration of each request for accommodation. The employer must make best efforts to arrive at a flexible accommodation plan, suited to a specific employee, with input from and collaboration with that employee.
While there is no formula that will immunize an employer from exposure to human rights complaints and wrongful dismissal claims, we can offer tips to help employers create flexible, efficient and effective accommodation plans.
- Remember the goal: to ensure that an employee who is able to work can do so.
- Acknowledge that employees in need of accommodation are equally capable of being productive members of the workforce.
- Be compassionate and considerate: it's hard to ask for help.
- Make sure that all accommodation efforts are well documented.
- Involve the employee and be open to advice from his or her physician on appropriate workplace modifications given the employee's medical condition, the prognosis for recovery, and the capability to work.
- Invest the time to develop an accommodation plan for each employee in need of one. A thorough record demonstrating a detailed analysis of possible accommodations is infinitely more persuasive than vague recollections of subjective and superficial attention.
- Use common sense. Examine what the situation calls for.
- Consider the interchangeability of the workforce and whether accommodation will interfere with the rights of other employees. Be sensitive to the response of other employees when making accommodations.
- Remember that accommodation goes beyond changes to the physical workplace and providing technical aids; consider flexible work hours and reduced schedules.
- Look beyond vacancies, consider creating a new position, or combining or rearranging duties. However, an employer is not required to create a redundant or unproductive position.
- If you have safety concerns, be sure they are based on real and objective evidence. A subjective belief that safety concerns exist will rarely establish undue hardship.
- Quantify the financial cost of accommodation. Consider both direct and indirect costs.
- Accommodation may not be a one-time deal, be aware that an employee's needs may change over time.
- Be proactive, review internal policies and procedures to ensure that when called upon, resources are available to design a flexible accommodation plan.
At the end of the day, once aware of an accommodation request, it is the employer's responsibility to initiate the development of the accommodation plan, with the employee having a corresponding duty to participate in that process. Employers often express frustration when attempts to accommodate are not effective. Typically, however, multiple adjustments to the work environment are required before an employer can think of relying on an "undue hardship" exception. Recall that in Hydro-Québec, the employer's accommodation attempts spanned over seven years, with the grievance arbitrator praising the employer's patience and tolerance.