Our last post defined discrimination at work, and outlined an employer's responsibilities to ensure discrimination is not endemic in their environment. Workplace discrimination is an issue that must be thoughtfully and carefully considered, as it can be highly sensitive for those involved.

For example, when an employee goes on disability claim, the employer must be vigilant in ensuring they have demonstrated a willingness to work with their employee during their period of disability. We have often been asked by clients who have employees on disability what their rights are, and at what point would it be appropriate to terminate the employment contract? This particular post will hopefully highlight what considerations an employer must take into account, and at what point the hardship to the employer tips the balance.

The duty to accommodate means that sometimes it is necessary to treat someone differently in order to be fair. But when is your duty to accommodate overridden by the hardship it will cause your organization?

What is undue hardship?

 Disclaimer: We are not in a position to define this for you or your specific company needs. We are not a legal firm and we cannot dispense legal advice. We always advise you to seek legal advice from a firm which specializes in Labour and Human Rights issues. The information which follows is a guideline to help you get started in a quest for answers. So, with that said:

The duty to accommodate has limits. Sometimes accommodation is not possible because it would cause an organization “undue hardship.” There is no precise legal definition of undue hardship, nor is there a standard formula for determining undue hardship. Each situation is unique, and as such must be handled as such.

A claim of undue hardship should not be based solely on an assumption or opinion, or with a simple claim of financial loss.  However, an employer may experience undue hardship when adjustments to the workplace would cost too much or create risks to health or safety. There is case law from which guidance can be gleaned and considered.

Courts have determined that accommodation efforts must be established, and should go to the point of undue hardship;  the threshold for undue hardship is fairly high. However, if an employer has reached that point, their legal duty to accommodate an employee may be discharged. A successful resolution to an accommodation request can vary greatly from one employer to another, but more than a mere inconvenience or disruption to the employer is expected in all situations.

The following issues are some determining factors for Employers with undue hardship:

• risks to health or safety of the employee, co-workers, or others
• cost
• effect on workplace productivity
• interference with collective agreement provisions
• impact on the rights and interests of other employees
• inter-changeability of the workforce and facilities
• size of the operation

Employers cannot rely on discriminatory attitudes of the public, clients or co-workers to argue that an accommodation would cause undue hardship. An example of a poor claim of hardship would be that clients do not want to be served by a woman or by someone with an accent.

Educating the matter and searching online for credible sources can help in learning further about your potential accommodation issue. Here are some links that may be useful:

heretohelp.bc.ca/duty to accommodate is a great source for mental health issues, gradual return to work after leave for mental reasons, and more.

rbs.ca/Employers-Duty-to-Accommodate-Disability provides an exhaustive commentary on the duty to accommodate, listing court cases published by Richards Buell Sutton, LLP on their website

bchrcoalition.org/Duty to Accommodate FAQ includes a comprehensive FAQ to which the employer or the employee can refer for guidance.

By bringing this topic forward,  we hope you have some insight into potential problems and opportunities you may face in the future. It has not been our intention to provide legal guidance. Rather, we hope to have provided a summary of what you need to know and resources you can turn to should your organization find itself needing help with this sensitive matter.

Our office can refer you to H.R. or legal professionals if you are in need of such advice. Do not hesitate to contact us for more information in the Greater Vancouver area.