Top court sets limits on duty to accommodate

Accommodation to be balanced with employees’ duty to work

In a ruling being hailed as a victory for employers, the Supreme Court of Canada has ruled that an employer’s duty to accommodate a worker has to be balanced with an employee’s duty to work.

Employers don’t have “a duty to change working conditions in a fundamental way,” wrote the high court in the unanimous ruling. What’s more, the test of undue hardship is not whether it’s impossible for an employer to accommodate an individual employee’s needs — it’s just whether the accommodation would cause the employer undue hardship.

Management-side lawyers applauded the ruling.

“It’s not every day the Supreme Court of Canada has an opportunity to rule on the duty to accommodate,” said Dominique Monet, partner at the Montreal office of Fasken Martineau.

The decision should scale back expectations on employers that have become entrenched in arbitration awards and court rulings in recent years.

The case involved the provincial utility Hydro-Québec and Local 2000 of the Canadian Union of Public Employees (or Syndicat des employé-e-s de techniques professionelles et de bureau d’Hydro-Québec), and centred around an employee with a history of mental and physical health problems.

She had undergone several surgical procedures and was taking medication for various problems. She also suffered from episodes of reactive depression and a personality disorder that made her relationships with supervisors and co-workers difficult. Over a seven-year period between 1994 and 2001, she missed 960 days of work, including an extended leave between February and July 2001 when she was terminated.

Over the years, the employer had made various adjustments for her, including lighter duties and gradual return to work after a depressive episode. Before she was fired, her doctor recommended she stop working for an indefinite period, and a psychiatric assessment ordered by the company concluded she wasn’t able to “work on a regular and continuous basis without continuing to have an absenteeism problem as in the past.”

The union grieved her termination, arguing via expert testimony at arbitration that the employee could work provided that the stressors “both those related to her work and those arising out of her relationship with her immediate family” be eliminated. The arbitrator sided with the employer, saying even going by the union’s expert’s assessment, “the employer would have to periodically, on a recurring basis, provide the complainant with a new work environment, a new immediate supervisor and new co-workers to keep pace with the evolution of the ‘love-hate’ cycle of her relationships with supervisors and co-workers.”

The union appealed to the Superior Court, which sided with the arbitrator. The Court of Appeal, however, found the employer had not proven it was impossible to accommodate the employee.

The court of appeal’s yardstick of “impossible” came from a 1999 discrimination lawsuit that female firefighter Tawney Meiorin won at the highest court. Since that case, it has become a widely adopted standard to measure how far employers have to go to accommodate an employee’s needs, said Monet.

That interpretation came from this passage in the Meiorin ruling: “A rule or standard must accommodate individual differences to the point of undue hardship if it is to be found reasonably necessary. Unless no further accommodation is possible without imposing undue hardship, the standard is not a (bona fide occupational requirement) in its existing form and the prima facie case of discrimination stands.”

But in the current Hydro-Québec decision, the Supreme Court clarified that “what is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances.”

The court added that the purpose of the duty to accommodate “is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.”

In a case of chronic absenteeism, if the employer can show it has taken steps to accommodate the employee but she’s still unable to go back to work in the foreseeable future, the employer will have established undue hardship.

So where does this place the duty to accommodate? The answer still depends on the circumstances of each case.

That case-by-case approach was reinforced in another recent Supreme Court decision, a January 2007 case involving McGill University Health Hospital. In that decision, the court found the employer’s duty to accommodate has to go beyond the three-year rehabilitation period it provided for in the collective agreement.

It’s a question of balancing that duty with other contractual obligations, said Fasken’s Monet. In Hydro-Québec, that does not go so far as to eliminate the employee’s contractual obligation to work, but in McGill University Health Centre, that duty can’t be confined to what’s agreed upon in a collective agreement.

The duty to accommodate has been a grey area, said Tom Ross, partner at Calgary-based McLennan Ross. And while he welcomed the ruling for the limits it sets, he said because the absenteeism in this case is so excessive, this ruling isn’t helpful in defining what accommodation should be.

“The whole issue of absenteeism is an area where boundaries have been pushed, and employers have been left in a position where they wonder, ‘How much am I entitled to expect someone to be able to work? At what point can I call it quits?’ This doesn’t give any definitive answer in that regard,” said Ross.

As a result, “lower courts and tribunals are still going to have to feel around the edges to determine what is appropriate,” he added.

Drawing the line

960 missed days of work

A woman known only as M.L., a commercial rates and programs sales clerk, worked at Hydro-Québec for 24 years before she was fired in July 2001.

Following a series of surgeries, she started to miss a lot of work, including 82 days in 1994, 225 in 1995, 186 days in 1996, 52 days in 1999, 210 days in 2000 and 106 days in 2001. According to the experts who examined her in 2000 and 2001, she had a personality disorder with borderline personality and dependency traits making her susceptible to feelings of abandonment, rejection, anger and injustice.

M.L. felt her physical pain arose from the ergonomics of her workstation, which her supervisor allegedly refused to rearrange. Hydro-Québec did make changes to put some distance between her and the supervisor, including giving her an outdoor job as a meter reader, which was short-lived because she was unable to drive because of her medication.

In January 2001, following several periods of absence, her new supervisor told her he would no longer allow her to take time off with less than a day’s warning. She took the next day off with no warning, and left work early several times in the following weeks. On Feb. 8, she didn’t show up at all and provided no explanation. She never returned to work, and Hydro Québec made repeated attempts to contact her but was unsuccessful. Her supervisor didn’t receive any news until March 14, and that came from the worker’s daughter. It wasn’t until April 26 that a Hydro-Québec doctor received a letter certifying M.L.’s inability to work. In May and June, her managers received other doctors’ letters prescribing a temporary cessation of work. Hydro-Québec dismissed her on July 19.

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