(i) that the standards it has set for the job are “bona fide occupational requirements”
(”BFOR”s); (ii) that the disability constitutes an actual, functional limitation on the person’s
ability to do the job, and (iii) the burden it would bear if it were not allowed to exercise its
powers of termination would be excessive or disproportionate. In deciding whether
retaining a disabled employee would impose undue hardship on an employer, the court
has highlighted a number of factors arbitrators should consider, including financial costs,
disruption of the collective agreement, problems of morale among other employees,
interchangeability of the workforce and facilities, the size of employer’s operation, as well
as whether anyone’s health and/or safety would be put at risk. Evaluating each case
along all of these dimensions has meant that the accommodation process is highly
individualized. In the words of the Court, “The scope of the duty to accommodate varies
according to the characteristics of each enterprise, the specific needs of each employee,
and the specific circumstances in which the decision is to be made.”
Within the framework laid out by the Supreme Court, arbitrators have compiled a set of
initiatives that employers should undertake, typically in consultation with the union. In
practical terms, arbitrators have said that an assessment should first be made of the
extent of the employee’s disability in his or her actual work situation. Consideration
should then be given to whether any aspect of the job, including the hours and place of
work, can be modified so that the employee can still perform it. Depending on the facts of
the case, an employer’s obligation may also include providing, or contributing to the cost
of, “personal bodily assistive devices” that enable an employee to do the job. Where it is
not possible for an employee to continue in his or her former position, arbitrators have
ruled that other jobs, in other locations and departments and even, in appropriate
circumstances in other bargaining units, ought to be canvassed, in a timely fashion, in
order to determine whether there is any other work which the employee could perform. In
determining whether disabled workers have a legitimate claim to some position other
than their own, arbitrators commonly direct employers to make modifications to jobs and
even to provide the employee with training or a trial period, where it would not be an
excessive burden to do so. Arbitrators have also required employers to make allowances
and adjustments to general rules governing attendance or the accumulation of seniority,
for example, for employees whose disabilities cause them to be absent from work more
frequently. As a general principle, it has been held that an employer cannot insist
employees meet an “absolute standard of successful performance” in satisfying its
obligation of reasonable accommodation. There is also a reluctance to require employers
to retain disabled workers in active employment if it entails overriding seniority rights and
results in the displacement of or significant financial loss to able-bodied employees. As
well, it is expected that employers will be supportive towards alcoholics and employees
who abuse other drugs, in helping them overcome their addictions.
Even though the employer’s duty to accommodate disabled employees is stricter and
more rigorous in Canada than in the United States, it is not so demanding that it is
impossible to meet. All arbitrators agree that even though employers cannot expect
disabled employees to be able to do every aspect of a job, they have a right to insist that
all employees be able to perform, on a regular basis, the essential, core functions of their
positions. Workplaces do not have to be totally reorganized, and while it is not
uncommon for employers to be told they must sometimes collect a bundle of tasks that a
disabled employee is capable of performing, some arbitrators have shied away from
imposing such an obligation where it entails creating a whole new position, and none will
do so where the job is just makework. The test applied by most arbitrators is whether the
job that a disabled employee claims the right to perform is “useful and productive for the
employer”.
To satisfy their duty to accommodate, employers are not expected to have to bear
excessive financial costs or expose other workers or members of the public, or even the
disabled employee, to unacceptable levels of risk to their health, safety and general well-
being. Nor are arbitrators inclined to order accommodations that will anger, frustrate or
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