Developments in technology Industry is driven, in part, by developments in technology — construction is no exception. Technology in the construction industry brings about positive change — cost effectiveness, increased efficiency and safer projects. However, technology also means new concepts, new products and new processes, all of which bring about new legal risk. The Canadian […]read more
The Duty to Accommodate: When is the Point of Undue Hardship Reached?
Under human rights legislation, employers have a duty to accommodate an employee’s needs related to a prohibited ground of discrimination to the point of undue hardship. It can often be difficult for employers and their legal counsel to assess when the point of undue hardship is reached.
The authorities establish that the undue hardship standard necessitates that the employer will suffer some hardship in its accommodation efforts, and that undue hardship occurs if an accommodation would create onerous conditions, such as intolerable financial costs or serious disruption to its operations. In practice, it can be difficult to apply these principles with certainty. The assessment of whether undue hardship is reached is very contextual, which results in a degree of uncertainty as to how it will be applied in a particular matter. The same accommodation may constitute undue hardship for one employer, but not for another employer in different circumstances.
A recent case from a Nova Scotia Human Rights Board of Inquiry sheds some insight on when the point of undue hardship is reached. In LeFrense v IBM Canada Ltd, 2015 CanLII 1720, Mr. LeFrense alleged that his employer, IBM, breached its duty to accommodate his physical disability (sleep apnea) by failing to adjust his shifts. Mr. LeFrense worked as an IT maintenance specialist, and he was required to be on-call one weekend every eight weeks and one night every two weeks. Mr. LeFrense requested that IBM accommodate his sleep apnea by relieving him of the on-call requirements of his position. IBM rejected this request, but proposed that Mr. LeFrense would only be required to work a maximum of 8 hours per day on two Saturdays per month. Mr LeFrense made a counter-proposal that he only be required to work one Saturday per month. IBM ultimately took the position that it could not adapt his work schedule as an IT maintenance specialist without suffering undue hardship, and offered him a different position at a reduced salary. Mr. LeFrense accepted this position, but later filed a Human Rights complaint.
The Board of Inquiry noted that IBM’s business was to serve the immediate and pressing technological needs of its customers, and that those employed in the business had to live that reality. It concluded that Mr. LeFrense’s job was not in its nature a “nine to five” position, and that IBM’s customers’ required IT maintenance specialists to be available on evenings and weekends.
Mr. LeFrense was part of an eight or nine person team, and they rotated their on-call requirements. If a person was unable to work an on-call shift, then someone else on the team had to take it on. Accordingly, the Board concluded that if Mr. LeFrense was relieved of the requirement of working the on-call shifts, this would significantly disrupt the other members of Mr. LeFrense’s team.
The Board further concluded that IBM’s requirement of on-call weekend and overnight work was a bona fide occupational requirement within the Nova Scotia Human Rights Act.
In considering whether IBM met the duty to accommodate, the Board indicated that some deference is owed to an employer’s good faith efforts to accommodate an employee:
At some point, it seems to me, we have to defer to an employer’s good faith efforts to accommodate an employee and manage the work place. We do not, I think, want to put ourselves in a position where we are second guessing management’s reasonable and good faith decisions on accommodation, nor do we want to put ourselves in a position where we are fiddling with a return to work plan, saying that one is acceptable, but another with a minor variation is not.
The Board was also critical of Mr. LeFrense’s refusal to try to the modified work schedule proposed by IBM. It suggested that he ought to have tried the proposed accommodation and if it was not workable, then it could have been addressed at that time. It was also critical of Mr. LeFrense’s failure to propose alternate accommodations to IBM. It stated that “[o]ne is left with the impression that he felt entitled to tell IBM he could not work and then expected IBM to adapt itself and the rest of the team to suit his requirements even if this meant burdening his colleagues with his on-call shifts or adding personnel while holding his position open for him.”
Based on all of the foregoing, the Board of Inquiry was satisfied that IBM met its duty to accommodate Mr. LeFrense. It concluded that Mr. LeFrense’s proposed accommodations to his work schedule would have imposed “too great a burden on the rest of the team and on IBM’s needs to manage its work force to service its clients’ urgent and pressing needs.” Therefore, the Board dismissed the complaint.
While IBM was successfully able to establish that it met the point of undue hardship in this matter, it is important to recall that it engaged in significant accommodation efforts before it met this threshold. It paid Mr. LeFrense disability benefits while he was off work for two years, actively engaged in accommodation discussions with Mr. LeFrense and his physician, and ultimately found him a different position within the company. The employer’s accommodation efforts, the effect of Mr. LeFrense’s proposed accommodation on other employees, and Mr. LeFrense’s refusal to try IBM’s proposed accommodation were important factors in the Board’s conclusion. This case serves as a reminder to employers that it is possible to reach the point of undue hardship, but they will typically be required to engage in significant accommodation efforts before taking the position that they have met the duty to accommodate.