Positive decision ‘for employers who probably feel like it's really hard to prove undue hardship’: lawyer
An adjudicator from the Ontario Public Service Grievance Board has dismissed a public sector worker’s complaint that his employer failed to accommodate his disability by ending a modified work arrangement when the worker’s restrictions became permanent.
The worker was employed as manager, air approvals in the Environmental Permissions Branch of the Ontario Ministry of the Environment, Conservation and Parks. He was on an extended medical leave before returning to work in August 2021.
Due to medical restrictions, the worker returned on a part-time basis, working two days per week. Some of his people-management responsibilities were given to another employee and he focused mainly on project-based tasks. For the other three days each week, the worker received Short Term Sickness Plan (STSP) payments.
The worker continued under this arrangement for a year-and-a-half. In March 2023, he provided updated medical information stating that he was permanently restricted to two days of work per week and he needed three days off to recover.
Accommodation arrangement ended
Two months later, the Ministry informed the worker that it could no longer accommodate him in his position because he was unable to perform the core duties of his managerial role. The Ministry placed the worker into its Health Reassignment Program effective May 29, 2023, in which he would receive STSP payments and he would have to consent to an independent medical examination (IME).
“It looks like [the Ministry was] asking for regularly updated medical information and not making assumptions about what the worker could and couldn’t do - which is key in these cases - and it also looks like whatever restrictions they had on file for him between 2021 and 2023 were honoured,” says Madeleine Loewenberg, an employment lawyer, workplace investigator, and mediator at Loewenberg Psarris Workplace Law in Toronto. “It looks like there was no real discussion to be had [after the restrictions were made permanent] because the medical information was so clear.”
The worker’s STSP credits ran out on Oct. 10 and he applied for long-term income protection (LTIP) while going on an approved, unpaid medical leave. His LTIP application was denied in November, so he resubmitted consent forms for an IME. The Ministry requested a consent form for a psychiatric assessment in December, but the worker didn’t provide one.
On Jan. 3, 2024, the worker reached out to the Ministry setting out his concerns, and he was told to continue to work with the director of his group to resolve the issues. The next day, he informed the Ministry that he intended to retire effective Jan. 30.
Duty to accommodate
The following week, on Feb. 5, the worker filed a complaint with the Public Sector Grievance Board alleging that the Ministry failed to accommodate his disability under the Ontario Public Service Disability Accommodation Policy (DAP), which led to his removal from his home position.
The worker claimed that his arrangement of working two days per week while dividing his tasks with another employee was working well and the Ministry didn’t engage with him as part of the accommodation process, leading to an end to the accommodation and his placement in the Health Reassignment Program. He also alleged that the Ministry purposely drew out the process under the program, which led to his STSP entitlement running out and forcing him to retire before he was ready – a decision he made under duress, he said.
The Ministry argued that it met its duty to accommodate by supporting the worker’s extended leave and providing him with modified duties when he returned. When the medical evidence indicated that the worker’s restrictions were permanent, it could no longer accommodate him because the duty to accommodate doesn’t require the creation of a new position for the worker, which is what continuing the arrangement would do, it said.
The adjudicator noted that the onus was on the worker to show that a neutral requirement or factor from the employer had an adverse effect on him because of his disability. If the worker was successful in proving that, then the onus shifted to the employer to show that the requirement was reasonable and necessary, and it couldn’t accommodate the worker without undue hardship.
In addition, the adjudicator pointed out that the duty to accommodate has procedural and substantive elements – the former requiring the employer to take the necessary steps to determine what accommodations might be required and the latter to actually provide the accommodation necessary through modified duties or other means.
Worker had disability
There was no dispute that the worker’s medical condition qualified as a disability under the Ontario Human Rights Code, so the duty to accommodate was triggered, the adjudicator said.
The adjudicator found that the modified work arrangement from August 2021 to May 2023 –an extended leave followed by a two-day work week with some duties assigned to another employee - aligned with the worker’s medical restrictions and constituted appropriate accommodation, and the worker acknowledged that it was appropriate. However, this was intended by the = Ministry to be a temporary arrangement and, when the worker’s doctor indicated that the worker’s restrictions were permanent, the Ministry concluded that the worker couldn’t perform the essential tasks of his role, the adjudicator said.
The worker believed that the arrangement was working and wanted to continue, but the duty to accommodate didn’t entitle him to his chosen accommodation, only reasonable accommodation, said the adjudicator.
The adjudicator noted that it had been established that “accommodation is required if assistance is needed for an employee to perform the essential duties of the position… but, if a disabled employee is unable to perform the essential or core duties of his/her position, regardless of what attempts might be made at accommodation, that is the end of the matter.”
The adjudicator added that the duty to accommodate doesn’t require an employer to create a new job or “carve out parts of the job” on a permanent basis if the worker can’t perform the core duties of his role. The Ministry continued to keep the worker as an employee by putting him in the Health Reassignment Program, but the worker stopped this process by retiring, the adjudicator said.
Undue hardship
“I don't know that I agree that it’s undue hardship to rebundle [job duties] - which is what this employer seems to have done,” says Loewenberg. “It's a bit of a beacon of light for employers who probably feel like it's really hard to prove undue hardship, but I was a little surprised that it was acceptable to say [the arrangement] had been working for two years and the only change now is that it became permanent.”
“I agree that an employer doesn’t have to create a new job when an employee requires accommodation,” she adds. “An employer can require their workers to have to perform some core duties with or without accommodation, but there's no discussion in the decision as to why it would be problematic to maintain the status quo and to keep the accommodation going.”
The adjudicator also found no evidence that the Ministry applied any pressure on the worker to retire, noting that the stress of the worker’s circumstances, related to his financial situation and disability, wasn’t due to any threats or inducements by the Ministry.
“I don't know what the worker could have shown to prove that he had to resign, because one never has to resign,” says Loewenberg. “In a situation where he’s being accommodated and he thinks the accommodation isn't being appropriately carried out, he was unionized so he should have brought a grievance to address the matter, not resign and then try to claim retroactive rights.”
The adjudicator determined that the Ministry’s actions didn’t amount to discrimination or breach any condition of employment. The worker’s complaint was dismissed.
It's an encouraging decision for employers who may find determining the threshold of undue hardship difficult, that it can be proven in the right circumstances, according to Loewenberg.
“It's also a good reminder that we need to ask our employees for updated medical information on a regular basis, and to make our decisions based on that updated medical information,” she says.
See Wan and Ontario (Ministry of the Environment, Conservation and Parks) (June 2, 2025), Docket P-2023-02995, J. Sengupta V-Chair (Ont. Pub. Serv. Grievance Bd.).
