Supreme Court of Canada Helps Employers with Duty to Accommodate Disabilities

by Rachel Ravary
McCarthy Tetrault

Last week’s decision in Hydro Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec 2008 SCC 43 is good news for employers – finally there is a clear limit to your duty to accommodate employees who are chronically absent from work.

Not only did the Supreme Court of Canada clarify just how far an employer must go to accommodate a disabled employee, it also confirmed that all of the efforts made by the employer in the months and years leading up to termination must be taken into consideration when looking at whether the point of “undue hardship” has been reached by the employer.

Background
The plaintiff, a unionized Hydro Québec employee, suffered from a number of physical and mental conditions that led her to be off work on a regular basis. In fact, the record showed a whopping 960 absences over the last seven and a half years!

Over the years, Hydro Québec had made efforts to accommodate her by allowing progressive returns to work after prolonged absences and giving her light duties. However, in July 2001, she had been absent for more than five months. She had no expected date of return and the company’s doctor was of the opinion that the risk of relapse was high. In other words, the future would mirror the past. On that basis, she was terminated.

The arbitrator dismissed her grievance on the grounds that the employee’s condition could not be accommodated without undue hardship. Hydro Québec had therefore satisfied its duty to accommodate her.

The Superior Court upheld the decision, but it was later overturned by the Québec Court of Appeal. In a decision that was extremely troubling for employers, the Court of Appeal said that, to justify the dismissal, Hydro Québec had to prove that it was impossible to accommodate the employee’s particular situation, which it did not do. The court also refused to consider the history of accommodation and said that the only relevant circumstances were those that existed as of the time the decision to terminate employment was made.

Supreme Court decision
The Supreme Court of Canada ruled that the Québec Court of Appeal was wrong on two counts: first, in setting too high a standard for assessing undue hardship and, second, by not looking at the entire history of the situation to determine whether the duty to accommodate was met.

First, the Supreme Court went back to the basics by reminding us of the true purpose of accommodation: to “ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.” This does not mean that disabled employees are relieved of their basic obligation to perform work, or that employers must go to outrageous lengths to fundamentally change the working conditions.

On that basis, the Supreme Court ruled that the employer is not required to show that it is impossible to accommodate the employee’s particular condition and limitations. Rather, employers have the obligation to adjust the workplace in a way that will enable the employee to do his or her work, provided it can be done without undue hardship. The Court gave examples such as allowing a variable work schedule, lightening duties, or even transferring the employee if it can be done reasonably.

If, despite the employer’s efforts, the business can’t operate properly or the employee remains unable to work for the reasonably foreseeable future, the employer will have satisfied its duty to accommodate and the dismissal will be deemed to be nondiscriminatory.

Finally, the Supreme Court confirmed that a decision to dismiss an employee in these circumstances must necessarily be based on an assessment of the entire situation, including the employee’s record of illness and everything the employer has done in the past to accommodate it.

Lessons learned
All in all, this decision goes a long way to circumscribing an employer’s duty to accommodate an employee who is unable to work because of illness. Canada’s highest court has now made it clear that the duty to accommodate doesn’t mean that employers are forced to live indefinitely with an employee who can’t satisfy the basic requirements of his or her position, or who would require drastic changes in working conditions to do so.

Employers can take this as a welcome sign that the voice of reason has finally weighed in on the debate over the duty to accommodate.