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The Duty to Accommodate a Chronically Ill Employee - Chris P. Morris

 

October 28, 2009

An employer’s duty to accommodate a chronic illness is a very significant issue in the workplace.  

Employers are statutorily required to accommodate employees with disabilities. Where an employee’s condition is chronic it raises some challenging issues for both employees and employers. The duty to accommodate is substantial, requiring an employer to make a genuine effort to meet an employee’s accommodation needs and requiring the employee to co-operate and help facilitate a solution. 

As substantial as the duty to accommodate is, it does have limitations. The duty extends only to the point of “undue hardship”. In other words, an employer must accommodate an employee unless it can show that to do so would amount to an “undue hardship” for the business. That is easy enough to say, but in practice, it can be difficult to determine what it means in each case.  

Until recently, the courts were starting to interpret “undue hardship” to mean that it would have to be “impossible” for the employer to accommodate the employee, to discharge the employer’s obligation. This issue was recently addressed by the Supreme Court of Canada in the case of Hydro-Québec v. Syndicat des employees de techniques professionnelles et de bureau d’Hydro-Québec (31395) (“Hydro Québec”). 

Hydro Québec involved the dismissal of a mentally ill employee who was chronically absent from work. The employer dismissed the employee because of her absenteeism and her inability to perform her job on a regular basis. In July of 2001, the parties went to arbitration and the employee’s union sought the employee’s reinstatement and compensation for damages. The arbitrator had to determine whether the employee’s dismissal was wrongful in the face of the employee’s mental illness. The arbitrator also considered the issue of whether measures taken by the employer were sufficient to accommodate the employee. The arbitrator dismissed the grievance and held that the only possible long term accommodation for the employee would amount to an excessive burden upon the employer. The arbitrator’s decision was appealed to the Superior Court of Quebec and was upheld.  

The decision was appealed and the Quebec Court of Appeal had to consider whether or not the trial judge wrongly upheld the arbitrator’s finding that the employee was unable to complete the necessary tasks required to perform her job and that it was impossible to accommodate her. The Quebec Court of Appeal set aside the Quebec Superior’s Court’s decision and held that the employer had not proven that it was impossible for it to accommodate the employee.  

The Quebec Court of Appeal decision left employers in a difficult position in relation to chronically absent employees, in that it set an almost insurmountable threshold. The decision of the Quebec Court of Appeal was appealed to the Supreme Court of Canada, which ultimately allowed the appeal and upheld the employee’s dismissal.  

The Supreme Court of Canada held that the Quebec Court of Appeal had misinterpreted the legal test for undue hardship and noted: “the test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace to enable the employee to do his or her work”.  

The Supreme Court of Canada specifically commented on cases involving chronic absenteeism. The Court noted that if an employer establishes that despite measures taken to accommodate the employee, the employee will be unable to resume their work in the reasonably foreseeable future, the employer will have discharged its burden and established undue hardship.

Hydro Quebéc is important because the Supreme Court of Canada has clarified that an employer does not need to establish that it is impossible for it to accommodate an employee’s disability. The Supreme Court of Canada also confirmed that the purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship. The duty to accommodate is not meant to alter the entire essence of the employment contract. The employer’s duty is to arrange the employee’s workplace to enable the employee to do his or her work.

This is not to say that the duty is not substantial because it is. An employer will be required to consider all available options and make every reasonable effort to accommodate an employee with disability, within the boundaries of undue hardship.

This article was originally published in an October 2009 edition of the Ottawa Business Journal.