The footnotes from Professor Lynk's article have been removed from this publication. The Employer's Duty to Accommodate The essence of the duty is simple to state: Employers in Canada are required to make every reasonable effort, short of an undue hardship, to find an accommodation for an employee with a disability.
Its outer boundaries, however, are much harder to determine.
In Calgary District Hospital Group, a nurse with a back-related injury was preparing to return to work.
Her back injury had left her unable to perform several key aspects of her regular position, including the lifting and transferring of patients.
If the employee cannot, then determine if he or she can perform his or her existing job with modifications.
If the employee cannot, then determine if he or she can perform another job in its existing, modified or "re-bundled" form. The Extent of the Employer's Duty The considerable weight that the duty places upon the employer is demonstrated in a recent award from Alberta.
In Re York County Hospital, the grievor, a nurse, was unable to return to her full nursing duties after suffering a work-related injury.
The employer wanted to place her in a part-time clerical position, but the grievor aspired to become an educator with the hospital, which would have required training.
Recent cases have said that the employer's accommodation efforts must be "serious", "conscientious", and it must demonstrate its "best efforts".
But this much is clear to date: The duty requires more from the employer than simply investigating whether any existing job might be suitable for a disabled employee.
Rather, the employer is expected to determine whether other positions in the workplace are suitable for the employee or if existing positions can be adjusted, adapted or modified for the employee.
The particular obligation of employers who operate larger workplaces is illustrated in Re T. Nevertheless, the arbitrator was satisfied that the size of the operations would allow the grievor to be accommodated in a different, re-designed job, with a regular rather than a rotating shift, and special training arrangements for other employees to work around the employee, among other conditions.
The employer's obligation to accommodate includes the provision of training to the employee, provided that the costs of such training would not amount to an undue hardship.