April 29, 2010

Employers are obligated to accommodate an employee, whose personal characteristics are protected under human rights legislation, to the point of undue hardship. But what is undue hardship, and what kind of evidence is required to demonstrate that this threshold has been reached? Are an employee’s preferences in terms of their preferred means of accommodation considered when assessing the level of hardship that an employer must endure? How does the employee’s willingness to participate in the accommodation process affect the assessment? Take this opportunity to hear Lancaster’s panel of experts review the latest cases in this challenging area of law and provide insight on these and the following issues:

  • Relevant Factors: What factors do courts, tribunals and arbitrators consider in determining whether accommodative measures cause undue hardship? Are some factors more important than others? Is effect on morale a consideration? How does evidence about the employer’s attempt to meet the procedural aspects of accommodation – including exploring what accommodation is needed and the options available –  factor into the assessment?
  • Financial Burden: How large a financial burden must the employer bear? What kind of financial evidence is required to prove that accommodation would result in undue hardship? Can this threshold ever be met by large corporations? Will the downturn in the economy make it easier for employers to argue that accommodation will result in undue hardship?
  • Absenteeism: To what extent can an employee expect accommodation of restrictions in his or her availability due to disability, family obligations, or religious reasons? What level of absenteeism will amount to undue hardship?
  • Safety and Liability Issues: Can the employer refuse to accommodate a disabled employee in a safety-sensitive job despite the employee’s acceptance of the risk? If required accommodation measures could result in increases in workers’ compensation premiums or the prospect of tort liability, does this equal undue hardship?
  • Job Modifications: If the employee cannot be assisted sufficiently to perform the job, is there a duty to transfer? Or to modify/rebundle the job or other jobs so that he/she can perform them? When will the reassignment of tasks that cannot be performed by a disabled employee amount to undue hardship? How do considerations of accommodation factor into the hiring process?
  • Essential Duties: Employees are expected to perform the essential duties of their job. At what point can employers take the position that workers are no longer fulfilling this term of their contract? What are “essential duties” and can an employer rely on the tasks outlined in the job description to argue that the employee is unable to perform the essential duties of the job?
  • Medical Information: What effect will recommendations contained in an independent medical examination have on defining the boundaries of undue hardship? What medical information must an employer seek prior to concluding that there is no reasonable prospect of improvement in treatment, and what is a “reasonable prospect”? What is the employer entitled to know? What responsibility to accommodate does the employer bear if the employer is unaware of the employee’s disability prior to discharge (but suspects something is wrong)?

This audio conference has been approved by the following:

  • The Law Society of Saskatchewan for 1.5 Continuing Professional Development hours.
  • The Law Society of New Brunswick for 1.5 Continuing Professional Development hours.
  • The Law Society of Upper Canada for 1.5 hours (Labour Law) towards the professional development requirement for certification.
  • The Law Society of British Columbia for 1.5 Continuing Professional Development hours.