Accommodating employee disability resulting from reckless off-duty conduct

Disability the result of employee's poor choices

Tim Mitchell

Question: Does an employer have to accommodate an employee’s temporary disability if it stems from an injury the employee sustained due to risky activity while off duty, and the accommodation is feasible but costs the employer money?

Answer: Employers are prohibited from discriminating in employment on the basis of a protected ground as defined in human rights legislation. Disabilities, whether permanent or temporary, are a protected ground under all Canadian human rights statutes, and an employer is obligated to accommodate employees with disabilities. There is no distinction between a temporary or permanent disability when it comes to an employer’s duty to accommodate. Further, there is no carve-out in human rights legislation for disabilities which are caused by a certain activity, nor does the prohibition on employment discrimination require the disability to arise from a reasonable activity or work-related event. It does not matter when or how the disability arose.

As such, an employer must accommodate temporary disabilities arising from an injury the employee sustained due to risky activity while off duty to the point of undue hardship. Undue hardship is described as the limit past which an employer does not have the obligation to accommodate an employee. There is no set formula for deciding what constitutes undue hardship. The following are some factors that human rights tribunals will look at when determining if there is undue hardship:

• The financial cost (and maintaining a productive workplace)

• The disruption of a collective agreement

• The risk of problems with other employees

• The size of the business and interchangeability of the workplace

• The health and safety risks attached to the accommodation.

Notably, the duty to accommodate may be different in cases of a permanent disability versus cases of temporary disability. In many instances, a long-term accommodation is more likely to reach undue hardship than a short-term accommodation. Further, while certain accommodation measures may create an undue hardship for one employer or service provider, the same measures may not pose an undue hardship for a different employer or service provider. For example, the manager of a business with three employees may not be able to accommodate a request for revised work hours, even on a temporary basis, as easily as a manager who has 25 employees. Generally, long-term accommodations are also more likely to have a larger impact on smaller employers.

With regard to the costs of accommodation, it is generally accepted in law that an accommodation may place a financial burden on the employer. The cost must be more than trivial in order to be classified as undue. The following expenses are not normally considered to constitute undue hardship: overtime or leave costs that the employer can tolerably bear; purchasing or modifying tools, equipment, or aids; altering the premises to make them accessible; offering flexible work schedules or rehabilitation programs; hiring an assistant; using temporary employees; and expenses incurred to respond to a grievance or a minor disruption to a collective agreement.

As with any accommodation or disability management issue, whether an employer must accommodate an employee’s temporary disability resulting from off-duty activity will depend on a myriad of factors including the nature of the employee’s disability and the employer’s operations.


Tim Mitchell practices management-side labour and employment law with McLennan Ross LLP in Calgary. He can be reached at (403) 303-1791 or [email protected].

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