Are we there yet?

The duty to accommodate can present a long and time-consuming journey for employers, especially in circumstances where accommodations carry on for several months or years into the employment relationship. While there is no established time limit on how long the duty to accommodate must be fulfilled, long-term accommodations can present circumstances of undue hardship and frustration of the employment relationship, thereby concluding the accommodation process. To provide a basis for raising these arguments, employers need to address a number of key considerations.

The duty to accommodate originates in human rights legislation, which prohibits various forms of discrimination against a number of protected grounds. While these grounds vary slightly across the country, they generally prohibit discrimination relating to employment on the basis of religion, creed, marital status, family status, sex, sexual orientation, disability, age, colour, ancestry, nationality, place of origin, race or perceived race, receipt of public assistance and gender identity.

The duty to accommodate is not a one-sided obligation. The employee (and the union if applicable) have an obligation to co-operate with the employer throughout the accommodation process.

The following are some key considerations for addressing accommodations in the workplace which are likely to carry on for a significant period of time. While long-term accommodations can arise under a variety of protected grounds, the protected ground of disability will be referred to as a common example.

Frustration of contract is not a termination or a resignation; the contract simply comes to an end, according to an employment lawyer.

Ensure the duty to accommodate has been properly triggered

Employers are not required to take employees at their word when addressing accommodation requests. The employee must provide sufficient grounds to trigger the accommodation process, often referred to as establishing a prima facie case of discrimination. Generally speaking, the employee is required to prove that they have a characteristic protected from discrimination under the governing human rights legislation, that they experienced an adverse impact, and that the protected characteristic was a factor in the adverse impact.

Employers can run into problems where they generously agree to accommodate an employee prior to a prima facie case of discrimination being established. This can create issues of unintentionally establishing deficient standards for employee information required when making accommodation requests or make it more difficult to argue an accommodation can no longer be provided in similar circumstances or at a later date. It is always best practice to require the necessary information at the outset of the accommodation process to avoid these unnecessary complications later on.  

An employer must pay statutory termination and severance entitlements to a worker whose employment was frustrated, an Ontario court ruled.

Request specific information on employee limitations

Employees are not permitted to dictate what accommodations are provided to them. They are only entitled to reasonable accommodations in the circumstances. While employees (and the union if applicable) may provide input in the accommodation process, it is the employer who ultimately determines what accommodations will be provided or whether to take the position that undue hardship has been established. To appropriately make this assessment, employers require information on the employee’s limitations.

Employers are entitled to request specific information relating to an employee’s inability to perform their job as prescribed. For employees with a disability, this will often involve requesting information from the employee’s medical practitioner on what they can and cannot do. To properly make this assessment, medical practitioners require information on the nature of the work environment and duties of the employee’s position. Providing the employee with a form or letter setting out this information, along with the required consent forms for medical disclosure is a recommended best practice.

An employee’s limitations may change over time. This is especially true in circumstances where an employee is absent from the workplace for a significant period of time. It may be that the employee will eventually be in a position to return to work at a reduced workload or on a graduated return-to-work process. It may also be that there is no reasonable likelihood of the employee returning to work in the foreseeable future. In either case, the employer will wish to know to determine next steps in the accommodation process. To find out this information, the employer should schedule regular communications with the employee on their restrictions. The frequency of those communications, and how they are provided, will be dependent upon the nature of the accommodations and the employee’s disability. The strategy for obtaining this information will be highly dependent upon the circumstances.

There is by no means a consensus amongst arbitrators, courts and human rights tribunals as to exactly what information an employee is required to provide to support an accommodation request. However, parties can generally expect that the employee requesting accommodation for a disability must be willing to provide at least some medical information to their employer which would otherwise be considered strictly personal and private.

Employers must balance their legal obligation to accommodate a disability with running a business when addressing a long-term employee absence, says a lawyer.

Consider whether undue hardship or frustration of employment has been established

Not all accommodations can reasonably be provided for extended periods of time. Tolerating excessive employee absenteeism is one example.

Absenteeism is the failure of an employee to report to work when scheduled to do so. In the duty to accommodate context, this is often non-culpable absenteeism in which an employee is absent due to an illness or disability for reasons beyond their control. This is not to be confused with culpable absenteeism which is blameworthy misconduct within the employee’s control. Culpable absenteeism, for example habitual lateness or failing to call in and advise of employment absences not otherwise connected to their illness or disability, may be dealt with through the disciplinary process.

In some circumstances, employers are able to effect a non-disciplinary termination for innocent absenteeism. For example, this could result from establishing undue hardship in accommodating excessive absenteeism or frustration of the employment relationship where the employee is unlikely to return to work in the reasonably foreseeable future. There is no magic number of absences to justify such a termination of employment. What needs to be determined is whether the employee’s absences have caused serious harm to the employer such that the employment relationship has been fundamentally undermined. Some common considerations for determining whether absenteeism is excessive include:

• The current average absenteeism for the workplace.
• Negotiated benchmarks for absenteeism found in sick leave, short-term and long-term disability provisions.
• Evidence of a detrimental impact that absenteeism has on the workplace in question.
• The nature and duration of the absence.
• How other employees with absenteeism issues are treated.

Attendance management programs can be of assistance in these circumstances.

The remedies and damages under human rights legislation can be significant. Further, depending upon the timing and reason for termination, an employer may be held liable for the loss of disability benefits of an employee where termination was found to be wrongful. Employers should be well advised of the risks in the circumstances before proceeding with termination of employment.

Amy Gibson is a partner at MLT Aikins in Saskatoon, practicing general labour and employment law. She can be reached at (306) 956-6994 or [email protected].