08 Feb Undue Hardship: The Limit of Accommodation
In a previous blog post, we looked at the principles of accommodation, namely: dignity, individualization, integration, and full participation. In this post we will explore the limits of accommodation.
Employment Equity
Employment equity is essential for any business to remain competitive in today’s modern, global economy. Fostering an equitable workplace will allow you to take advantage of the top skills and talents of all workers.
Equitable treatment does not necessarily mean equal or the same. In order to create an equitable work environment, an employer may need to treat some employees differently in order to accommodate their unique needs and give them fair access to employment opportunities.
For example, having only stairs into your building does treat everyone equal, but it is not equitable. People who require a mobility device such as a wheelchair do not have equal access to a building without a ramp.
The Duty to Accommodate
Many workers will, at one time or another in their careers find themselves in need of an accommodation and, as an employer, it is your duty to accommodate their needs to ensure they have equal opportunities for, access to, and benefits from employment.
There are many reasons why an employer may need offer an employee accommodation(s) in the workplace. For example, you may need to accommodate an employee’s health, caregiver responsibilities or pregnancy with modified facilities, job duties, training, or even hours or location of work.
The Limits of Accommodation
While there are many accommodations most any employer would be willing to implement (installing a wheelchair ramp, allowing an employee to work from home if their child is sick for example), there are also times when an employee’s accommodation needs may seem untenable for even the most generous and empathetic employer. What then, are the limits of an employer’s duty to accommodate?
Undue Hardship
In the event that an employer finds accommodating the needs of an individual untenable for the continued reasonable operation or function of their business, they must demonstrate that they have attempted to accommodate to the point of undue hardship.
Factors in determining undue hardship include: cost, outside sources of funding, as well as health and safety requirements. According to the Ontario Human Rights Commission, “evidence needed to prove undue hardship must be objective, real, direct, and, in the case of cost, quantifiable.”
In most situations, this means an employer must demonstrate that there is a specific financial cost directly related to the necessary accommodation and that this cost is unsustainable for the employer’s business.
If you believe that providing an accommodation will cause you undue hardship, you will need to be able to present facts, data or expert opinions to support your claim. Inconvenience, customer preferences and employee morale are not considered undue hardships.
Flatt v Treasury Board (Department of Industry) (2014)
This 2014 case concerning an employee’s request for alternate work arrangements to accommodate her breastfeeding provides useful insight into the extent to which employers must accommodate their employees in order to honour their human rights obligations.
In March 2013, after a year of maternity leave, Ms. Flatt extended her leave on a without-pay basis until July of the same year. During the extended months of her maternity leave Ms. Flatt began negotiating a telework arrangement with her employer, Industry Canada that would accommodate her desire to continue breastfeeding.
Flatt initially asked to work full-time from home. Her position with the company was largely administrative but did require regular field work and the company’s policy clearly stated that, while employees were allowed to telework on occasion, or from offices closer to their homes, that teleworking was not permitted long-term.
When this request was denied, Flatt sought a telework arrangement of working from home two days per week and having a modified work schedule the other three days in which she would take two 45-minute paid breaks from the office to breastfeed her baby at his daycare.
Her employer was generally agreeable to the terms but took issue with the need to have her reach 37.5 hours of work (excluding lunch breaks and breastfeeding) and that Flatt desired this accommodation for the entirety of a year. The employer offered Flatt the options to work part time, continue her leave without pay until she had finished breastfeeding or to work from home one day per week. Ultimately Flatt and her employer were unable to come to an agreement to accommodate her breastfeeding schedule.
The Public Service Labour Relations and Employment Board found the requirement for the employee to be physically present in the workplace was not discrimination on the basis of sex or family status and that Industry Canada had fulfilled its obligation to accommodate to the point of undue hardship.
Professional Advice for Employers
An adaptive and inclusive workplace is of benefit to everyone. It allows employers to harness their employees’ full potential towards their company’s mission. However, an employer’s ability to accommodate certain employee needs do have a limit. If you are an employer in the uncomfortable position of being unable to accommodate one of your employees, you should consult with an experienced employment lawyer at KCY at LAW to review the situation and your accommodation options or lack thereof. Call us at 905-639-0999 to book your consultation today!
