Duty to accommodate has its limits

• while every case will be fact-specific, an employer is generally not required to create a new job or remove another employee from her position to accommodate a disabled employee
• an employer can expect a grievor will be able to perform the core duties of her job — accommodating permanent restrictions does not require an employer to remove these core duties permanently
• it may not be a violation of the Ontario Human Rights Code (OHRC) to take the position that employment has been frustrated if the employer no longer has sufficient job duties available within the grievor’s restrictions.

The grievor had been employed at Nestlé Purina Petcare as a millwright. In 2004, he experienced a workplace injury that aggravated a pre-existing condition.

Initially, the grievor was away from the workplace for more than eight months. Upon returning, he was offered full-time accommodated employment. Shortly thereafter it was determined he was no longer able to work overtime. He made a claim to the Workplace Safety and Insurance Board (WSIB) for loss of earnings (LOE) benefits.

In the following years, the grievor’s condition deteriorated after he suffered a variety of further injuries. By 2008, the WSIB concluded the grievor was entitled to receive an LOE award and also a non-economic loss award. The WSIB premised its decision, in part, on the grievor’s evidence that he had received extensive accommodation from the employer yet had difficulty maintaining his level of work, even with the assistance of his co-workers.

Following an injury in 2008, the grievor was required to be away from work for two weeks and was unable to return to full-time duties for six weeks. The employer was extremely cautious in the nature of work it assigned to the grievor upon his return, reading the workplace restrictions very narrowly.

In 2009, following another injury, the grievor’s restrictions were amended, further restricting the type of work he could perform. The employer concluded it could not accommodate the grievor’s extensive restrictions any further due to a lack of available work within his restrictions and the grievor’s limited ability to perform the work available. In January 2010, Purina dismissed the grievor on the basis the employment relationship had been frustrated.

Purina took the position that the termination was appropriate due to the following:

• it had only limited work the grievor could perform based on his restrictions
• much of the work the grievor could perform was done only sporadically or was being re-organized
• the grievor continued to injure himself despite performing accommodated work
• the employer had accommodated the grievor to the point of undue hardship.

The union grieved the dismissal, arguing the employer breached the OHRC by not accommodating the grievor to the point of undue hardship. The union argued the following:

• the grievor was able to perform certain light-duty tasks that the employer ought to have allowed him to continue to perform
• the employer was interpreting the employee’s restrictions too narrowly
• there were other positions the employee could be placed into in order to continue his employment.

The arbitrator concluded the employer had fulfilled its duty to accommodate the grievor over the course of four years, but since there were not sufficient duties available within the grievor’s restrictions, the employer was justified in ending the employment relationship.

The arbitrator found the WSIB decision instructive in that it concluded — based on the employee’s own evidence — the grievor was having difficulty maintaining his level of work even with extensive accommodations and the assistance of co-workers. The grievor had also acknowledged he was often in pain when performing his duties.

The employer’s narrow interpretation of the grievor’s workplace restrictions was also found to be appropriate in the circumstances.

Arbitrator Jesin found the grievor’s frequent injuries, reported pain and increasing restrictions caused the employer to exercise its judgment reasonably when it took a cautious approach with respect to the appropriate allocation of work.

In respect of the grievor’s ongoing accommodation, the arbitrator concluded Purina was not required to indefinitely provide the grievor with light duties taken from other positions when the grievor was permanently unable to perform the core duties of his position.

The arbitrator distinguished the grievor’s case from the case of an employee who could not temporarily perform her core duties. In such a case, an employer may still be required to assign an employee light duties gathered from other job positions when an employee is temporarily unable to perform the core duties of her position. As the grievor was an employee who would not be able to perform the core duties of his position on a permanent basis, Purina was justified in ending the employment relationship.

It was also held that the employer was not required to create a new job to accommodate the grievor or give the grievor a position other than a maintenance mechanic, as there were no vacant positions in which to place him. Purina was not required to displace another employee to fulfill the duty to accommodate.

This decision stands as a reminder that the duty to accommodate has its limits. While these limits will not be reached in every case, the following steps should be taken by employers to increase the likelihood that a termination for frustration of contract will be upheld as reasonable:

• an analysis should be undertaken of the employee’s ability to perform the core duties of her position, with reference to the medical information provided by the employee and an objective analysis of the work that has to be performed
• records should be kept of the employer’s efforts to find safe work that accommodates an employee’s abilities and restrictions
• up-to-date medical information should be requested from employees asserting an ongoing need for workplace accommodations. This information will confirm the scope of the employee’s restrictions, facilitate the employer’s continued search for workplace accommodation and support any assertion by the employer that there are no further workplace accommodations that can be provided.
• the employee’s doctor should be asked to provide a prognosis for recovery, including the time it would take the employee to return to her core duties (whether or not on an accommodated basis)
• employers should consider involving workplace ergonomists and other specialists in the search for appropriate workplace accommodations. These specialists may be able to confirm or refute an employee’s ability to perform accommodated work that has been offered or requested.

Madeleine Loewenberg and Pamela Hofman are lawyers with Norton Rose Fulbright in Toronto. They practice management-side employment and labour law, including health and safety and can be reached at [email protected]
or [email protected].