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?