Employers are not required to hire extra staff or create ‘make-work’ assignments
By Nadia Zaman
We know that employers have a duty to accommodate employees up to the point of undue hardship where the need for accommodation relates to a ground protected by human rights legislation. These include disability, family status and sex.
The law is very clear that employers are required to accommodate needs, not preferences. This principle is re-affirmed in a recent Ontario decision.
In Ajax Professional Fire Fighters’ Association, Local 1092 v. Ajax (Town), 2019 CanLii 69278 (Ont. Arb.), a pregnant suppression firefighter who was scheduled on 24-hour shifts sought accommodation as her medical restrictions prevented her from responding to emergency calls, which was an essential duty in her role. There was nothing in the collective agreement giving her a right to a particular shift.
The employer had an accommodation policy where firefighters requiring accommodation for an extended period would be assigned to the day shift. However, the grievor wanted to be accommodated on the 24-hour shift, although not in a firefighter role. The grievor’s husband is also a firefighter and they worked opposite shifts which allowed them both to provide childcare for their son.
Potential accommodation options and modified duties within the 24-hour shift were discussed, however, the town decided to apply the regular policy and assign the grievor to modified duties on the day shift with no wage loss. The town explained this decision to the grievor in an email:
“The town is unable to approve your request to remain on shift while on modified duties for the following reasons:
1) During your first pregnancy, you and the association expressed concern with responding to emergency incidents due to possible exposures to various contaminants and potential harm to your unborn baby. The town supported the concern at that time and continues to support that concern. As you would be unable to perform your duties as a firefighter and also be unable to respond to emergency calls because of the potential for exposure, there would be no meaningful modified duties for you to perform while on shift and especially during the night hours while others may be sleeping.
2) You have indicated that there is daycare available for your current child while you are working dayshift although it was not your preference."
The grievor argued that flexible childcare was a need, not a preference. The accommodation offered remained the same, and the association filed a grievance alleging discrimination on the basis of sex and family status and failure to accommodate under the Ontario Human Rights Code.
After the grievance was filed, the parties met to discuss childcare needs, and the town informed the grievor that it would allow her to take time off through vacation, lieu or bank time for childcare. In addition, she would be working the four-day-per-week schedule and could adjust her day off to cover her childcare needs. She was also given additional time to research childcare options and commenced her day shift a couple weeks later than scheduled.
Arbitrator Jasbir Parmar found that “the town had a duty to accommodate the grievor’s pregnancy, as it impacted her ability to perform the full duties of her job as a suppression firefighter on the 24-hour shift.” However, discrimination on the basis of family status was not established as there was no evidence that she suffered a disadvantage relating to her childcare obligations as a result of the change to her schedule.
Parmar noted that the town had met its procedural duty to accommodate since it met with the grievor multiple times to discuss accommodation options and made a “serious effort” to obtain relevant information.
The substantive duty to accommodate was also met. Employers are not obligated to accommodate an employee in their current position if they cannot fulfill the “essential duties” of that role. Here, the grievor could not perform the essential duties of her current role, and therefore, accommodating her in the 24-hour shift would mean the town would be required to hire an additional employee so that the required work could be safely performed in emergency response.
Parmar clarified that employers are not required to hire an additional person to perform the duties that an employee seeking accommodation could not perform. As well, employers are not required to fundamentally change the nature of the work that the employer needs done, or create “make-work” assignments.
This decision provides a helpful guide for employers in accommodating employees:
- ●The objective of the duty to accommodate is “to ensure the employer is engaged in a serious effort to consider and assess the issue of accommodation in all of the circumstances of the case.”
- ●The substantive duty to accommodate does not require an employer to hire extra staff or create “make-work” assignments.
- ●Employers should apply any accommodation policy to the individual circumstances of the employee.
- ●Employees are not entitled to their preferred accommodation “but only to a reasonable accommodation that meets their needs.”
- ●To be accommodated in their current position, employees must be able to perform the “essential duties” of the position; otherwise, an employer is entitled to consider accommodation options outside of the current position.
- ●The question is whether “meaningful work” can be performed and “whether work is meaningful must be assessed on the basis of whether an employer requires the work to be done and whether it would serve the employer to assign these duties to the [employee].”
Nadia Zaman is an associate at Rudner Law in Toronto.