Automatic termination clauses may clash with accommodation (Legal View)

Recent Supreme Court ruling strikes balance between negotiated clauses and individual circumstances
By Jodi Gallagher
|Canadian HR Reporter|Last Updated: 02/22/2007

Accommodating disabled employees who are absent from the workplace for extended periods of time can be one of the most challenging issues an employer faces. The courts have repeatedly emphasized that the employer’s obligation to accommodate disability extends to the point of “undue hardship,” yet this somewhat amorphous concept can be difficult to apply.

To provide some element of certainty around the duration of the obligation to accommodate an employee’s absence, many unionized employers have negotiated “deemed termination” clauses into collective agreements. Following years of conflicting arbitration decisions about the enforceability of such clauses, the Supreme Court of Canada recently issued a decision on this issue.