An employer’s duty to accommodate is a difficult concept to master. A recent decision from Alberta, Horvath v. Rocky View School Div. No. 41, notes the significance of the employer’s response in the accommodation process. The decision discusses both the response to the request in this particular case, as well as a general policy on permanent restrictions requiring accommodation.
Kathalin Horvath was employed as a caretaker for the Rocky View School Division No. 41. She dislocated her right shoulder at work and required surgery. Following surgery, a period of leave, and rehabilitation, the Workers Compensation Board determined that Horvath was fit to return to work and could perform modified duties with temporary restrictions. However, her surgeon determined that the medical restrictions would be permanent. The employer said it did not have a suitable permanent position for Horvath given this limitation and terminated her employment.
What did the tribunal say?
The tribunal confirmed that Horvath had a disability and required accommodation. The question then turned to whether the employer had accommodated Horvath’s disability to the point of undue hardship.
Because the employer had terminated Horvath’s employment, the burden fell on it to demonstrate undue hardship. The tribunal did not accept that the employer had accommodated Horvath to the point of undue hardship because the employer "did not take more than cursory steps to explore what accommodation might have been necessary to allow Horvath to return to work with permanent restrictions." That was a problem.
Furthermore, the employer had a policy of not providing permanent accommodation, which the tribunal found had "no justification in law and placed arbitrary and unwarranted restrictions on the employers duty to accommodate." Finally, the tribunal concluded that the employer failed to consider alternatives for Horvath. Had the employer attempted to evaluate Horvath’s ability to contribute meaningfully to the workplace in relation to other work or positions within its more than 40 schools, the tribunal believed reasonable and practical options would likely have become apparent. Because the employer focused solely on returning Horvath to the duties of her position, the tribunal concluded that there was no foundation on which to plead undue hardship.
After a detailed analysis, the tribunal concluded that the employer discriminated against Horvath because of her disability and awarded Horvath $44,658.48 in lost wages, and $15,000 as compensation for distress and injury to her dignity.
What does this mean for employers?
Employers must always be aware of their duty to accommodate employees with a disability, but this case highlights two important points to keep in mind:
- Even if an employer thinks accommodation may not be possible, it should fully explore the possibilities. A cursory consideration could result in a finding of discrimination.
- An employer cannot safely rely on a policy that restricts possible accommodation without considering whether the effects of the policy could result in discrimination.
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Patti Wheatley manages an active litigation practice with Stewart McKelvey in Charlottetown, with a focus on employment, labour, and workplace human rights In addition, she regularly acts for clients in residential property transactions, wills and estates, and general litigation matters. She can be reached at (902) 629-4546 or email@example.com.
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