Job Re-Design: When does accommodation result in undue hardship?

The obligation to accommodate employees with disabilities to the point of undue hardship may require an employer to modify job duties, bundle tasks or transfer an employee who is no longer able to perform the essential duties of his or her position. In such instances, parties frequently disagree about what amounts to undue hardship. In this panel, Lancaster’s experts will discuss job-related accommodation measures and the limits of the duty to accommodate, including:

• Essential factors in assessing undue hardship: What factors do adjudicators consider when determining whether the point of undue hardship has been reached? Safety? Financial cost? Disruption of a collective agreement? Employee morale? Will the analysis be different for temporary versus permanent accommodation measures? What evidence will an employer need to call to support a claim of undue hardship?
• Job modification and bundling duties: Are employers required to modify job duties or re-bundle tasks as part of the duty to accommodate? When, if ever, will such accommodation measures constitute undue hardship? What consideration has been given in recent case law to issues of productivity and other operational concerns/requirements?
• Bumping: When, if ever, should an employee be permitted to bump another employee out of a position as an accommodative measure? Must the union consent? How is undue hardship assessed in these situations?
• Transfers and promotions: If an employee cannot perform the essential duties of his or her job, is there a requirement to transfer her or him to another position? If an employee is transferred to a lower-paying classification/position as an accommodative measure, is the employee entitled to have his or her pay rate red-circled (i.e., maintained until it is exceeded by the negotiated wage rate)? When, if ever, might an employer be required to consider promoting an employee as an accommodation? What constitutes undue hardship in such circumstances?
• Dealing with co-workers: How should employers and unions respond to co-workers who are disgruntled by an accommodative measure, without violating employee privacy rights?
• Creative accommodation: What creative accommodation measures have parties adopted in the workplace? What are some recommended best practices for employers and unions when responding to accommodation requests?