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EMPLOYMENT LAW
Jul 28, 2015

The necessity of accommodation

If an employee with a disability doesn’t want accommodation and seems able to do the job, should accommodation be pursued?
    


By Jeffrey R. Smith


Canadian employers have a duty to accommodate employees with disabilities. Well, at least a duty to investigate to the best of their ability any and all options for accommodation, up to the point of undue hardship.

This doesn’t mean an employee has to be accommodated — if accommodation simply isn’t possible, the employer has met its duty as long as it has exhausted all possibilities. But what if the employee has been performing her job for some time without needing accommodation, while having the disability in question?


Take for example a recent case involving a private security company responsible for security screening at an Ontario airport through a contract for services. The airport’s governing authority had specific requirements for security screening officers and these officers had to have medical checkups every couple of years in order to be certified. Anyone who wasn’t certified could not work as a security screening officer.


One screening officer in particular had worked in the position for 10 years. He was partially colourblind in that he couldn’t discern certain reds and greens, which was potentially a problem because the X-ray machines used at the airport used colours. The officer’s medical reports indicated this colourblindness, but the man’s certification went through and he was able to continue in the job, which he performed well — even serving as a trainer for certain duties.


In April 2013, the company’s general manager learned that the officer was colourblind. Because of the airport authority’s requirements, he knew the officer should not be allowed to perform X-ray functions, so he initiated an accommodation process that would allow the officer to continue in his job performing all functions except for those at the X-ray machine.


The screening officer protested because he didn’t feel his colourblindness affected his ability to do his job, as he had been doing it for some time. He also considered the X-ray functions the best part of his job, so he was reluctant to give it up. When he refused to participate in the accommodation process, the company terminated his employment. The officer filed a grievance.


The arbitrator agreed the officer had demonstrated he could do the job, but that wasn’t the issue. The airport authority had specific requirements that someone who was colourblind couldn’t perform X-ray functions and the company had to follow those requirements. Regardless of whether the officer had done his job well for years without incident, the requirement was there for the public safety and once the company became aware of the officer’s disability, it had to take action and remove the officer from X-ray functions.


The arbitrator also found that the officer was not a victim of discrimination because the employer only removed him from X-ray duties — he could still perform all the other functions, so there wasn’t much change in the job and he suffered no loss of pay or status. The termination of his employment wasn’t for his disability, it was for his lack of participation in the accommodation process, said the arbitrator. See Garda Security Screening Inc. and UFCW, Local 175 (Ciccone), Re, 2015 CarswellOnt 9906 (Ont. Arb.).


The case emphasizes the importance of employee participation in the accommodation process. Without the participation of both employer and employee, it’s just not going to work and if an employee refuses to do her part, termination may be the only option for the employer.

But the case raises another issue: Is accommodation necessary if the employee has been doing the job already without issue while having the disability in question?


The employer above was under contract and had to follow the airport authority’s requirements. But if it was the employer’s own policy, should the employee have been allowed to continue working the X-ray function? Is accommodation necessary if the employee is able to work without any changes to the job?


    
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