September 10, 2015

While there is no question that employers must accommodate employees with disabilities “to the point of undue hardship,” parties frequently disagree about what amounts to undue hardship. Determining where the point of undue hardship lies in the accommodation of employees with mental disabilities can be particularly difficult. In the wake of the Germanwings tragedy, questions have also arisen regarding the appropriate balance between concern for safety and accommodation for employees with mental disabilities. Take this opportunity to hear Lancaster’s panel of experts review recent trendsetting cases on undue hardship. Special attention will be given to accommodation of employees with mental disabilities.

  • Ascertaining the limits of accommodation: Can post-discharge information be relied upon to establish that an employee has a disability and should have been accommodated? Can post-discharge information be used to establish undue hardship? When will an employer’s failure to inquire into the existence of a disability requiring accommodation deprive it of a defence of undue hardship?
  • The essential factors and inquiries: What are the essential factors that must be considered in determining whether accommodation has been provided up to the point of undue hardship? What are the latest developments in the consideration of safety as a factor in assessing undue hardship? What have recent cases said about financial cost? How have arbitrators and tribunals been dealing with employee morale and disruption of collective agreements in recent cases? Are arbitral attitudes changing with regard to when interference with seniority rights will constitute undue hardship?
  • Is there a procedural duty to accommodate? Can an employer be held liable where the procedural aspects of the duty were not fulfilled, but it is determined that accommodation up to the point of undue hardship would have been impossible in any event? What are the procedural steps that must be taken in order to demonstrate compliance with the duty to accommodate up to the point of undue hardship?
  • Exploring the range of accommodative measures and undue hardship: What accommodative measures do recent cases say employers are required to consider before they can satisfy the test of undue hardship? Must job duties be modified, or tasks re-bundled? Must employers alter performance expectations? Must they alter their expectations about what characteristics an employee should show at work, for example showing initiative or working well in groups? If the employee cannot be assisted to perform the essential duties of the job, is there a requirement to transfer the employee to another position? When will it be undue hardship for an employer to accept an employee’s absenteeism or poor attendance?
  • Mental health and safety: What role does the statutory requirement to provide a safe work environment play in the undue hardship analysis when an employee has a substance use disorder? What role does concern for safety play in the undue hardship analysis when accommodating an employee with a mental illness? What genuine safety concerns, if any, are raised in the context of accommodating an employee with a mental illness? What safety concerns can be attributed to stigma and false stereotypes?