The Duty to Accommodate – How far is too far?

Feb 29, 2016

We get calls from employer clients who are exasperated because a disabled employee has made what the employer considers to be an unreasonable request. However, it is important as an employer that you seriously consider all requests for accommodation because if you don’t you could end up in legal hot water. This blog is about an employee who requested her employer accommodate her by moving her to another building because a co-worker caused her stress.

Duty to Accommodate

An employer has a duty to accommodate a disabled employee unless the employee is incapable of performing the essential job duties or requirements. To prove that the employee is incapable, the employer must show that the needs of the employee cannot be accommodated without undue hardship.

Emond v. Treasury Board (Parole Board of Canada)

Ms. Edmond was a long-service employee who had always performed her duties satisfactorily. In or about Fall 2009, she began to have issues with a colleague Mr. X. Her complaints included that he: was loud, swore, broke wind, made strange noises, walked barefoot around the office and washed his feet with vinegar at his desk. On one occassion, he made a threatening comment after she banged on the wall they shared because he was being noisy. His actions made her nervous. She raised her concerns with managers, but never filed a formal harassment complaint. The employer seemed to believe that this was a personality conflict between co-workers.

In August 2011, after Mr. X filed a harassment complaint against her, the employee commenced sick leave. The employee’s family doctor concluded that she was afraid of Mr. X and suffering from “emotional stress” which impaired her concentration. Eventually, her doctor stated that she could return to work if she was allowed to work at another building away from Mr. X. The Employer offered to move her to another floor, but that was not enough according to the employee and her doctor as she could still run into Mr. X.

The adjudicator concluded that employer failed to accommodate the employee. She ordered that the employer move the employee to another building located in Ottawa and compensate the employee for the difference between what she received while on long-term disability and her salary.

Lessons for Employers:

  1. Don’t be hasty in dismissing an employee’s complaint which appears on the surface as a personality conflict with another colleague or manager.
  2. Just because the requested accommodation is inconvenient doesn’t mean the company doesn’t have to do it. In her decision, the adjudicator specifically mentioned that the employer did not satisfy her that the employee needed to work out of the building to which she was assigned.
  3. Suggest, or require (if permissible), that the employee to obtain a second opinion from a third party medical professional if his/her accommodation request seems unreasonable
    In her decision, the adjudicator relied heavily on the employee’s family doctor’s recommendation that she needed to work out of a different building. The employee’s diagnosis and this recommendation was not contradicted by any second opinion, which was noted by the adjudicator.

If you have any questions about your obligations to accommodate employees with disabilities, one of our lawyers would be happy to speak with you. Please call 647-204-8107 or email [email protected]

k

Recent Posts

Toronto Office

702 - 2 Bloor Street West,
Toronto, ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue,
Barrie, ON L4N 9J2

Collingwood Office

220 - 1 First Street
Collingwood, ON
L9Y 1A1

Contact

Phone

+1 (888) 640-1728

Fax

(866) 883-8445

Email

[email protected]

Toronto Office

702 - 2 Bloor Street West, Toronto ON M4W 3E2

Barrie Office

277 - 92 Caplan Avenue, Barrie ON L4N 9J2

Collingwood Office

220 - 1 First Street, Collingwood, ON L9Y 1A1

Translate

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!