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Duty to Accommodate Employees – An Employer’s Obligation

REPOST  ARTICLE SOURCE: http://www.minkenemploymentlawyers.com/employment-law-issues/the-employer%E2%80%99s-duty-to-accommodate-employees/

 

Employees may have special needs related to illness, disability, or various circumstances that fall under prohibited grounds for discrimination such as a person’s sex, age, creed or other human rights factors. Employers have the duty to accommodate such employees by making the workplace more accessible and suitable for the employee.

Employers who do not fulfill their duty to make reasonable accommodations for a disabled employee may be found to have violated the employee’s human rights. The employee may also have grounds for claiming constructive dismissal as a result of the lack of appropriate accommodation from the employer.

How Far Must an Employer Accommodate?

The duty to accommodate obliges the employer to make reasonable efforts to alter the workplace so that it is more suitable for the employee’s needs in relation to their disability, thus allowing the employee to properly carry out their work duties.

This duty stops short of the employer experiencing undue hardship. Such undue hardship generally involves excessive interference with a business’ operation, or if the employee is unable to work despite the employer’s efforts to accommodate. What constitutes undue hardship varies based on the circumstances surrounding each individual case.

Is the Employee Entitled to a Perfect Solution?

The duty to accommodate does not, however, carry with it an expectation of perfection. Instead, the employer must make reasonable accommodations even if these fall short of a perfect solution for the employee.

As such, the employee has a corresponding duty to make it possible for reasonable accommodations to be implemented by the employer. If the accommodation fails due to the employee’s refusal to cooperate with the employer, then the employer’s duty to accommodate is discharged. If the accommodations are found to be reasonable but are turned down by the employee, then the employer’s duty is considered to have been properly discharged.

Is Termination an Option if Accommodation Fails?

In some cases, even reasonable efforts to accommodate a disabled employee fail, and the employee is unable to work despite the accommodation efforts. Any further accommodation may lead to undue hardship for the employer resulting in excessive interference with a business’ operation.

In such cases, an employer’s duty to accommodate a disabled employee does not restrict the employer from terminating an employee for being unable to perform the essential work duties. However, these work duties must be bona fide occupational requirements (“BFOR”) and bona fide occupational qualifications (“BFOQ”).Such terminations would not be deemed discriminatory.

Determining When Discriminatory Standards are Legitimate

The case of British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance) [1999] 3 S.C.R. 3 provided a 3-point common law test to determine whether a discriminatory standard is a bona fide occupational requirement.

First, the standard must be rationally connected to performing the job. Oftentimes, this connection involves the ability to work safely and efficiently. However, whatever the reason, the employer must demonstrate that the general purpose for having the standard itself is valid.

Second, the standard was made in an honest and good faith belief, without the intention to discriminate against an employee. Notably, even a reasonable standard could be disqualified from being considered a BFOR if motivated by discrimination.

Third, the standard must be reasonably necessary for the employer to accomplish its purpose, and it would be impossible to make accommodations without imposing undue hardship upon the employer.

In all cases, the standard must not be any higher than is necessary. Where a discriminatory standard meets these criteria, then limitations of an employer’s accommodation efforts and the resulting exclusion of certain classes of people would not amount to discrimination.

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