A Labour & Employment Law Update

23-July-2008

In a decision last week involving a disabled employee of Hydro Québec, the Supreme Court of Canada offered some much needed clarification as to the extent to which disability-related absenteeism must be accommodated and the balance between that duty and an employee’s duty to work.

In this case the employee had a number of physical and mental problems, and her record of absences indicated that she had missed 960 days of work over 7 1/2 years of employment. Over these years, the employer had adjusted her working conditions in light of her limitations, for example, by modifying her workstation, allowing part-time work, and assigning her to a new position. At the time of her dismissal she had been absent from work for over 4 months because her attending physician had recommended that she stop working for an indefinite period. The employer had also obtained a psychiatric assessment which indicated that she would no longer be able to “work on a regular and continuous basis without continuing to have an absenteeism problem as in the past”.

The employee grieved her dismissal, and the arbitrator found her termination to be justified because she was unable, for the reasonably foreseeable future, to work steadily and regularly. The Québec Court of Appeal did not agree as it was of the view that the employer had not proven that it was impossible to accommodate the employee.

In restoring the arbitrator’s decision, the Supreme Court offered the following guidance regarding an employer’s duty to accommodate disabled employees:

• The duty to accommodate does not displace the general labour law principle that employees must do their work.
• The duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.
• The test for undue hardship is not whether it was impossible for the employer to accommodate the employee’s characteristics. Nor is the test total unfitness for work in the foreseeable future.
• Employers do not have a duty to change working conditions in a fundamental way in order to accommodate disabled workers. In this case, having to change the employee’s work environment, supervisor, and co-workers constituted undue hardship.
• However, employers do have a duty, if possible without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties — or even authorize staff transfers — to ensure that the employee can do his or her work, it must do so to accommodate the employee.
• Undue hardship is proven if: (a) the characteristics of an illness are such that “the proper operation of the business is hampered excessively” OR (b) an employee with such an illness “remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her.”
• In a case involving chronic absenteeism, undue hardship is proven if the employee is unable to resume his or her work in the reasonably foreseeable future, despite measures taken to accommodate the employee.
• A decision to dismiss a disabled employee because of his or her inability to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation, including past absences and previous attempts to accommodate the employee.

This update is a general overview of the subject matter and cannot be regarded as legal advice. Please contact Vicki Giles in Edmonton, Tom Ross in Calgary, Glenn Tait in Yellowknife, or any member of our Labour & Employment Practice Group for advice on this or any other labour & employment law topic.