This responsibility requires the employer to look at all other possible positions.Recent cases have said that the employer's accommodation efforts must be "serious", "conscientious", and it must demonstrate its "best efforts".Arbitrators and the reviewing courts have recognised that accommodation always requires a balancing act between two underlying issues: the right of an employee with a disability to equal treatment, and the right of an employer to operate a productive workplace.The employer is not required to accommodate where undue hardship would result, nor is it obligated to create an unproductive position.Editor's Note: Editor's Note: Michael Lynk is a professor of law at the University of Western Ontario.The article set out below is a summary of information presented by Professor Lynk at his presentation given to the Public Service Alliance of Canada in September, 1999.The footnotes from Professor Lynk's article have been removed from this publication. The Employer's Duty to Accommodate The essence of the duty is simple to state: Employers in Canada are required to make every reasonable effort, short of an undue hardship, to find an accommodation for an employee with a disability.Its outer boundaries, however, are much harder to determine.
The employer's obligation to accommodate includes the provision of training to the employee, provided that the costs of such training would not amount to an undue hardship.In Calgary District Hospital Group, a nurse with a back-related injury was preparing to return to work.Her back injury had left her unable to perform several key aspects of her regular position, including the lifting and transferring of patients.In any permanent accommodation circumstance, an employee has to be able to perform the essential job duties of the existing or re-structured or newly-assigned position.
This was illustrated in the recent decision of the Federal Court of Appeal (FCA) in Holmes v. A pay clerk working for the federal government developed severe numbness and pain in her right shoulder, making it difficult to perform her duties.
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.