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Partners in accommodation

Employers have legal duty to investigate accommodation options, but not to actually find work if there aren’t options

By Jeffrey R. Smith

It can be a daunting task for an employer to find a place for an employee who can’t perform her full duties due to an injury or disability.

But it’s a task the employer has to tackle, because legally, it has a duty to accommodate to the point of undue hardship — which means if it’s at all possible to have the employee working in some way through modified duties that doesn’t hurt the employer’s business too much, then the employer has to keep the employee working.

But accommodation is a two-way street. The employer has an obligation to investigate all possibilities, but the employee also has an obligation to co-operate with these efforts. This co-operation could involve providing information on functional limitations and restrictions as well as being open to different solutions that may not be ideal. It’s been said before in court decisions dealing with accommodation issues: Accommodation doesn’t have to be perfect, it just has to be reasonable.

In Fontaine c. Canada (Administrateur general, ministère des Pêches et des Océans), 2012 CarswellNat 3539 (Can. Pub. Service Lab. Rel. Bd.), a worker with the federal Department of Fisheries and Oceans (DFO) had to go on sick leave due to psychological issues that were a result of conflicts with other workers. After two years off, he provided a doctor’s note that cleared him to return to work, with the condition he be relocated to an office where he wouldn’t be in contact with those with whom he had conflicts. However, the worker didn’t indicate who those people were.

The DFO did some investigating and determined who the people were, and told the worker he could return to his old position because those people were no longer in the office. The worker refused and insisted there were still people he didn’t want to encounter, though he again didn’t name names.

The DFO disagreed, but said it was open to other solutions. However, though the worker wanted a transfer, he wanted to remain in the immediate area, which limited the options. The DFO found another opportunity for him at a nearby office, but the worker again refused and said he could still encounter people he didn’t want to encounter. The DFO asked the worker to provide his doctor’s opinion on his ability to work with the offers presented to him, but the worker didn’t. After a couple of more months, the DFO determined the worker could no longer hold his substantive position, even with modifications, so it terminated his employment.

An adjudicator upheld the termination, finding the DFO did everything it could to accommodate the worker — making sure the people who caused him problems weren’t there, offering him his old job back, searching for other jobs and offering him another position. However, the worker did nothing to help things out — he didn’t do any searching himself, refused to provide information that would help the DFO in its efforts, and declined to provide specific information on his restrictions. To try to further accommodate the worker would be undue hardship, said the adjudicator.

Sometimes, an employer can bend over backwards to find a fit for an employee with a disability, but it can’t be expected to find a fit by itself — the employee has to help.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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