The Key Factors in Assessing Undue Hardship: Which are important and how important are they?

While there is no question that employers must accommodate disabled workers in the workplace “to the point of undue hardship,” there is significant confusion about what “undue hardship” means. Frequently, employers argue that accommodations impose undue hardship in the form of unsustainable financial costs, risks to safety, or reduced production. Unions argue undue hardship in the form of disruptions to collective agreements and adverse effects on member morale. But how often does any undue hardship argument succeed? What types of arguments are most effective? And which arguments can be made in which jurisdictions? In this session Lancaster’s experts will take a systematic approach to examining the different factors that may be considered in an undue hardship analysis including:

• Undue Hardship Generally: What are the leading Supreme Court of Canada decisions on defining the concept of undue hardship? Are the factors enumerated in the Supreme Court’s decision in Central Alberta Dairy Pool still the main factors arbitrators, tribunals and courts will consider when determining undue hardship? If legislation, such as the Ontario Human Rights Code, specifically enumerates factors to be considered in assessing undue hardship, will adjudicators look only to these statutory factors or will they also consider factors based on the common law test in Central Alberta Dairy Pool?
• Financial Cost: When, if ever, will an employer be able to establish undue hardship because of the financial cost of an accommodation? What type of evidence will an employer have to present to show undue hardship because of financial cost?
• Disruption of a Collective Agreement: If in order to accommodate an employee, an employer must violate the seniority provisions of the collective agreement, when does such a violation constitute undue hardship? What other disruptions of a collective agreement will contribute to undue hardship?
• Morale Problems: What types of morale problems are legitimately considered in an undue hardship analysis and which are considered evidence of discrimination? How can an employer or union separate legitimate morale problems from problems caused by the discriminatory attitudes of coworkers?
• Interchangeability of Work Force and Facilities: In what types of organizations and in what circumstances will adjudicators consider the lack of available human resources (i.e. lack of interchangeability in the workforce) to be a significant factor contributing to undue hardship?
• Size of the Operation: How significant is the ‘size of the operation’ when determining whether the financial cost or the impact on morale constitute undue hardship?
• Safety: Against what standard of safety is undue hardship judged? Is the standard “the highest level of safety” or is it reasonable safety? What’s the difference? Does the identity of the party bearing the health or safety risk matter? Can an employee voluntarily accept a health or safety risk to him or herself?
• Legitimate Operational Requirements of the Workplace: How should we classify accommodation issues which don’t fit under the classic six headings developed by Alberta Dairy Pool? Does an employer have to create an unproductive job in order to accommodate? Does an employer have to change the job or the environment in which the job is performed? Is an employee entitled to be accommodated for all of his or her religious holy days? How many times would an employer be required to accommodate an employee who is unable to overcome his or her addiction?
• Employee’s Duty to Cooperate: How does the employee’s duty to accept reasonable accommodation fit into the undue hardship analysis? How far must employers go in fashioning an accommodation that takes into account the preferences of an employee being accommodated? Must employee preferences be respected in the accommodation process unless they lead to an accommodation that creates undue hardship for the employer?