THE EMPLOYERS' EDGE
Arbitrator Determines that Accommodation Does Not Require Hiring Additional Staff to Perform Work of Disabled Employee
The recent arbitral decision in Hamilton Health Sciences v. Ontario Nurses’ Association, 2013 CanLII 36061 (ON LA) deals with the limits of reasonable accommodation of disabled employees. In most jurisdictions in Canada employers are required to accommodate employees with disabilities unless doing so would result in “undue hardship” to the employer. What constitutes “undue hardship” will vary depending on the circumstances of each case. In dismissing the union’s grievance alleging that a nurse had not been adequately accommodated, Arbitrator McNamee relied heavily on the decision of the Supreme Court of Canada in McGill University Health Center (Medical General Hospital) v. Syndicat des Employees de l’Hopital general de Montreal et al.  1 S.C.R. 161 (McGill), where the court stated:
“The factors which might support a finding of undue hardship are not entrenched and must be applied with common sense and flexibility… For example, the cost of the possible accommodation method, employee morale and mobility, the interchangeability of facilities, and the prospect of interference with other employee’s rights or of disruption of the collective agreement may be taken into consideration. Since the right to accommodation is not absolute, consideration of all relevant factors can lead to the conclusion that the impact of the application of a prejudicial standard is legitimate.”
In Hamilton Health Services, the employee, a nurse who had been on Long term disability up till May 19, 2012, was seeking to be compensated for lost wages for the period from the expiry of her LTD benefits until her return to full-time employment on August 1, 2012. Of primary consideration for Arbitrator McNamee was the Union’s contention that the employer could and should have accommodated the employee by reassigning her to the position of Team Leader 8 West, a position that was primarily administrative. The rationale for such placement was that the job would not require the employee to perform work beyond her recognized physical restrictions.
The employer countered that the Team Leader position involved a necessary work component which involved basic patient care that was outside the employee’s physical restrictions. Arbitrator McNamee was therefore charged with determining whether the “bedside and emergency patient care requirements expected of a Team Leader constitute essential duties of the job”. Evidence was adduced that indicated that the “direct patient care components of the Team Leader job are essential duties within the meaning of s. 17 of the Human Rights Code, and that the grievor, by her own admission and on all the available evidence, was incapable of performing the duties”.
Arbitrator McNamee concluded that the only way to “ensure that all of the Team Leader functions could be carried out, even on day shift, would be to schedule an extra employee to the unit.” In finding that the requested accommodation was beyond the threshold of “undue hardship”, McNamee noted that “an employer is not required to accommodate to the extent that it provides another employee specifically for the purpose of assisting a disabled employee to perform the essential duties of his/her job”.
Accommodating employees with disabilities is perhaps one of the most challenging workplace issues faced by employers. The lawyers at CCPartners can assist in all matters relating to the accommodation of employees with disabilities, including determining the scope of an employer’s obligation to accommodate and when it may appropriate for an employer to take the position that accommodation is not possible without undue hardship.
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