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.
In its award, the board said it is not sufficient for the employer to show that its employee could not perform any of the current job descriptions.
It must also be able to show that the job descriptions cannot be altered without undue hardship: "The duty to accommodate requires more than determining that an employee cannot perform existing jobs.
Whether accommodation would amount to undue hardship entails a spectrum of considerations, including, but not limited to: (i) financial cost, (ii) disruption of a collective agreement, (iii) problems of morale of other employees, (iv) the interchangeability of the workforce and facilities, (v) safety, and (vi) the size of the operations.
The costs of accommodation should be compared with the resulting benefits in deciding whether the hardship caused by accommodation is "undue".
Having determined that the grievor could not perform any existing job, the employer was obligated to turn its attention to whether, and in what manner, existing nursing jobs could have been adjusted, modified or adapted short of undue hardship to the hospital in order to enable the grievor to return to work despite her physical limitations." As part of the remedy, the board ordered the hospital to "conduct a thorough examination of its work place in order to ascertain how, without incurring undue hardship, it can adapt or modify a nursing job (or jobs) so that the grievor's physical disability can be accommodated." Other recent labour arbitration awards have reinforced this point.
The employer is not required to accommodate where undue hardship would result, nor is it obligated to create an unproductive position.
These principles re-state, in a more concise form, the essence of the recent Supreme Court judgements: "The duty to accommodate derives from the right to equal treatment under the Ontario Human Rights Code.
That duty includes "not only the duties and requirements associated with current jobs but also the duties and requirements associated with a bundle of existing tasks within the ability of a disabled employee." The undue hardship test, which, if applicable, relieves the employer from accommodation requirements, requires the employer to do more than bear trivial or de minimus costs to accommodate the needs of a disabled employee.
In any permanent accommodation circumstance, an employee has to be able to perform the essential job duties of the existing or re-structured or newly-assigned position.
This was illustrated in the recent decision of the Federal Court of Appeal (FCA) in Holmes v. A pay clerk working for the federal government developed severe numbness and pain in her right shoulder, making it difficult to perform her duties.