Trendsetting Cases on Undue Hardship: What are the limits of the duty to accommodate?

Issues:

Trendsetting Cases on Undue Hardship: What are the limits of the duty to accommodate?

While there is no disputing that employers have a duty to accommodate up to the point of undue hardship, workplace parties still face significant uncertainty in determining exactly when, in practice, that point has been reached.

  • What factors do decision-makers examine when deciding these cases?
  • Will the risk of on-duty impairment be sufficient?
  • How do the rights of other employees factor into this assessment?

In this session, top advocates will review significant trendsetting cases in undue hardship, examining issues such as the following:

Establishing undue hardship:

  • What is the current legal test for undue hardship?
  • What factors do courts, tribunals, and arbitrators consider in determining whether accommodative measures cause undue hardship?
  • If legislation specifically enumerates factors to be considered in making this assessment, will adjudicators examine only those factors to the exclusion of all others?

Health and safety risks:

  • What questions do adjudicators ask when assessing whether an accommodation is likely to cause significant health and safety risks?
  • What types of evidence do they consider when making that assessment?
  • Can the mere risk of on-duty impairment in a safety-sensitive position be sufficient to constitute undue hardship?
  • What about the risk of relapse?
  • What role does a last-chance agreement play in establishing undue hardship?

Rebundling tasks:

  • Are there any recent decisions examining the extent to which an employer must rebundle tasks or reorganize work before the point of undue hardship is reached?
  • Will an employer be required to remove a core component of a job in order to accommodate an employee’s restrictions?
  • Do adjudicators distinguish between temporary accommodation measures and accommodation over the longer term once an injury or disability is deemed permanent?

Cost of accommodation:

  • When will an employer be able to establish undue hardship due to the financial cost of an accommodation?
  • What type of evidence will an employer have to provide to establish undue hardship on this ground?

Impact on other employees:

  • What are some examples of potential accommodation measures that were found to significantly interfere with the rights of other employees, resulting in a finding of undue hardship?
  • How do arbitrators, courts, and human rights tribunals balance the conflict between a worker’s right to reasonable accommodation against the collective agreement rights of other employees?
  • Will an accommodation that interferes with the seniority provisions in a collective agreement indicate that the limit of undue hardship has been reached?