Balancing Act The Duty To Accommodate And Undue Hardship

Posted May 20, 2023 by

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In Alberta human rights law, employers have a duty to accommodate employees based on certain, enumerated, protected grounds. The duty to accommodate refers to the legal obligation of employers, to make reasonable adjustments or modifications to accommodate the needs of individuals or groups who are protected under the Alberta Human Rights Act. This duty applies to a range of grounds of discrimination, including disability, religion, gender identity, and race.

The duty to accommodate requires that individuals or groups who face barriers to full participation in society because of their protected characteristics are entitled to equal treatment, access, and opportunities. Accommodations may include changes to policies, procedures, physical environments, and communication methods to ensure that people with disabilities or other protected characteristics can do not face unreasonable barriers to employment.

The duty to accommodate is not absolute and is subject to the concept of “undue hardship,” which means that an accommodation may not be required if it would cause significant difficulty or expense for the employer responsible for providing the accommodation. However, the standard for undue hardship is high, and it is the responsibility of the person or organization to prove that an accommodation would cause undue hardship.

Balancing the duty to accommodate with the concept of undue hardship requires a careful analysis of the specific circumstances of each case. Factors that may be considered in determining whether an accommodation would cause undue hardship include the size and resources of the organization, the nature of the accommodation requested, the financial cost of the accommodation, and the potential impact on other employees or customers. In assessing whether an accommodation would cause undue hardship, it is important to consider whether alternative accommodations may be available that would be less burdensome but still effective in addressing the needs of the individual or group seeking accommodation. It is also important to note that the concept of undue hardship does not allow an organization to simply avoid its duty to accommodate altogether. Rather, it serves as a limit on the duty to accommodate, requiring organizations to make accommodations where possible, but allowing for exceptions where the burden of accommodation is too great.

Balancing the duty to accommodate and undue hardship were the central issues in the recent Human Rights Tribunal of Alberta’s decision in Prescot v Alberta Health Services, 2023 AHRC 30. This decision involved an employee who suffered from Chronic Inflammatory Response Syndrome (CIRS), a condition caused by sensitivity to certain environmental elements such as mold. The complainant requested that a variety of accommodations to carry out her role and continue with her employer, including conducting certain testing on her work environment, a role where she could avoid chronic exposure to untested buildings, a remote working position, or a temporary role while her employer continued to search for a permanent position that would address her accommodation needs. Her employer refused all such proposals, including a proposal to test the building for the presence of mold. The employer terminated the complainant’s employment, taking the position that the complainant was uncooperative in the accommodation process.

The Tribunal determined this amounted to a failure to accommodate the employee. The Tribunal could not identify a valid reason as to why the respondent should not conduct the tests, noting that the testing was not expensive and did not pose a risk to other employees. The Tribunal found that requiring the employer to conduct these tests did not present an undue hardship to the employer.

It is a recognized principle of the duty to accommodate that the complaint must assist in helping the employer establish reasonable accommodations. To facilitate the search for an accommodation, the complainant must do his or her part as well.  Concurrent with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation.  The employer in this case argued that the complainant failed to participate in the accommodation process. The Tribunal rejected this argument, finding “the complainant was providing the respondent opportunities for collaboration, but the respondent was not reciprocating in a meaningful way. The evidence suggests that the complainant did her best to address the misconceptions that the respondent had about her situation, but the respondent seemed stuck in their position that the offers being presented to the complainant were reasonable.” The Tribunal focused especially on the refusal to consider the testing proposed by the complainant, and the lack of investigation by the employer to consider alternative options.

Prescot presents an example of an employer who failed to meaningfully consider accommodations requested by an employee. Here the employee made numerous suggestions that would allow her employment with the employer to continue, but the employer simply took the position that the employee was being unreasonable. Ultimately this led the Tribunal to determine the employee’s rights were breached. A hearing on remedy will be held at a later date.

At Cashion Legal, our Calgary employment lawyers have extensive experience in assisting employees who have suffered workplace discrimination, including employees who’ve been terminated following a failure to accommodate. If you are concerned that your employer is not adequately accommodating your disability, feel free to contact us today.

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