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Putting in a second effort

Accommodation is not an easy process and the first attempt may not be successful

By Jeffrey R. Smith

When at first if you don’t succeed, try, try again.

That proverb applies to many things in life. Things don’t always work out at first, but it doesn’t mean walking away when things get a little difficult is the right course of action. Especially when one is legally required to do something, like an employer accommodating an employee.

It’s been discussed in this space before that while employers have a legal duty to accommodate employees with disabilities or other grounds protected under human rights legislation, accommodation efforts can only go as far as the employee is willing to co-operate. If the employee doesn’t fully participate in the process, then often the employer’s duty is considered to be complete.

But when can an employee be considered to be not co-operating? That’s something employers had better be sure of before they throw their hands up and stop. Just as employees aren’t entitled to get their “perfect” accommodation arrangement that they want, just because the process gets a little more difficult doesn’t mean the employer can stop.

Last year, the City of Winnipeg had one of its employees — a swimming instructor and lifeguard in its aquatics division — get injured in a skiing accident. The employee wasn’t able to work in the pool because of his injury, and spent a couple of months on sick leave. As his sick leave came to an end, he asked the city if it could accommodate him with a desk job. His doctor completed a functional abilities form that stated he could do “sedentary work.”

The city looked into accommodation options and found a position in reception he could do. The employee had some experience at this job, but it was only as a fill-in for lunch breaks and only involved certain tasks. In order to do the job full-time, the employee would have to attend two days of computer training.

The city informed the employee of the training dates, but the employee – who was also a university student – said he couldn’t make it because he had presentations and exams on those days. The city then said it had tried to accommodate him but without his co-operation on the training it could do no more, and put him back on sick leave.

The arbitrator determined the city was too “rigid and inflexible” and didn’t live up to its duty to accommodate to undue hardship. As it turned out, there was more training the following month, but the city didn’t consider sending the employee to the later training, nor did it explore the possibility of him working in other jobs that met his medical restrictions. The employee was eager and willing to participate in the accommodation process, and he had a good reason why he couldn’t attend the specified training dates. This was not equivalent to not co-operating with the city’s accommodation efforts, said the arbitrator: see Winnipeg (City) and CUPE, Local 500 (Derbitsky), Re, 2014 CarswellMan 603 (Man. Arb.).

The accommodation process is often not easy. Both the employer and the employee have to work together to come to a solution that works best for both. Neither side will likely get exactly what it wants, but the idea of the process is to come to an arrangement that puts the least hardship on both and enables the employee to continue working. So if things get a little difficult, that’s not necessarily the point of undue hardship.

The duty to accommodate is not something employers can get out of, nor something employees can get out of putting effort into either. But sticking with it until a solution is found can make it easier in the long run.

Jeffrey R. Smith is the editor of Canadian Employment Law Today. 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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