These principles re-state, in a more concise form, the essence of the recent Supreme Court judgements: "The duty to accommodate derives from the right to equal treatment under the Ontario Human Rights Code.That duty includes "not only the duties and requirements associated with current jobs but also the duties and requirements associated with a bundle of existing tasks within the ability of a disabled employee." The undue hardship test, which, if applicable, relieves the employer from accommodation requirements, requires the employer to do more than bear trivial or de minimus costs to accommodate the needs of a disabled employee.The arbitration board ruled for the union, deciding that the clerical position was not the only available accommodation possible for the employee: "We accept that the grievor received very little, if any, training.In retrospect, and in view of the grievor's present career goals, it would have been prudent for the employer to have arranged for training in the education department." Arbitrator Richard Brown, in Re Mount Sinai Hospital, has laid out the governing principles of the employer's duty to accommodate.If the employee cannot, then determine if he or she can perform his or her existing job with modifications.If the employee cannot, then determine if he or she can perform another job in its existing, modified or "re-bundled" form. The Extent of the Employer's Duty The considerable weight that the duty places upon the employer is demonstrated in a recent award from Alberta.
Recent cases have said that the employer's accommodation efforts must be "serious", "conscientious", and it must demonstrate its "best efforts".Having determined that the grievor could not perform any existing job, the employer was obligated to turn its attention to whether, and in what manner, existing nursing jobs could have been adjusted, modified or adapted short of undue hardship to the hospital in order to enable the grievor to return to work despite her physical limitations." As part of the remedy, the board ordered the hospital to "conduct a thorough examination of its work place in order to ascertain how, without incurring undue hardship, it can adapt or modify a nursing job (or jobs) so that the grievor's physical disability can be accommodated." Other recent labour arbitration awards have reinforced this point.In Re Greater Niagara General Hospital, the arbitration board ordered the employer to re-examine existing positions in a nursing unit to determine if they could be re-structured into a new "bundle of duties" that would allow the grievor, a nurse, to work within the limitations of her permanent back injury.Whether accommodation would amount to undue hardship entails a spectrum of considerations, including, but not limited to: (i) financial cost, (ii) disruption of a collective agreement, (iii) problems of morale of other employees, (iv) the interchangeability of the workforce and facilities, (v) safety, and (vi) the size of the operations.The costs of accommodation should be compared with the resulting benefits in deciding whether the hardship caused by accommodation is "undue".
But this much is clear to date: The duty requires more from the employer than simply investigating whether any existing job might be suitable for a disabled employee.