Accommodation Is Not “Make Work”

Employers should always be aware that accommodation is not a “make work” endeavour. 

Where an employee cannot complete the basic obligations of a job, there may be no way to properly or reasonably accommodate that employee in your office.

Generally, human rights law requires employers to accommodate the disabilities of their employees – but only up to the point of undue hardship. Determining where is the “point of undue hardship” is a contentious issue. 

Luckily, the Human Rights Tribunal of Ontario has clarified what undue hardship is, where an employee cannot complete the basic obligations of a job.

In the case of Pourasadi v. Bentley Leathers Inc. (2015 HRTO 138), the Tribunal found that a retail manager not being able to serve customers rendered them incapable of performing the essential duties of the job. The Tribunal concluded that the duty to accommodate did not extend so far as to require her employer to exempt her from performing those essential duties.

Facts from Employment

The employee in question was a manager of a retail store. An important part of her job was interacting and assisting customers on a regular basis. As a result of a workplace injury to her right hand, the employee said she was limited in her ability to perform some physical tasks, including assisting customers.

After attempts to accommodate the employee, the Ontario’s WSIB accepted the employee into a retraining program.  As a result of that, the employer terminated her employment. In return, the employee filed a human rights complaint alleging discrimination on the basis of disability.

Employee’s legal argument

The employee argued that when she was working alone in the store, she should be allowed to tell customers that they had to return to the store at a later time if they required physical assistance with certain tasks (outside of her physical capabilities). She argued this would be an infrequent circumstance and not hardship to the employer.  She also argued that the duty to accommodate should require the employer to both permit her to ask customers to leave and return later when someone else could help them, and to delegate certain tasks to other employees. Since she could assist customers most of the time, she argued she was, in fact, capable of performing the essential duties of her position.

Employer’s legal argument

The employer continued to say that assisting customers was an essential part of the employee’s job; forcing the employer to permit the store manager to turn customers away would be an extraordinary and unreasonable extension of the duty to accommodate.

The employer also said that it was irrelevant how often the employee would have to tell customers to leave and come back because the accommodation the store manager wanted went to the heart of the essential duties of the employee’s position. The employer asked the Tribunal to consider the legitimate operational requirements of the workplace when assessing whether the employer had reached and surpassed its duty to accommodate.

Final Decision

The Tribunal agreed with the Employer.

It said assisting customers constituted over two-thirds of the duties of a store manager, and store managers typically worked alone for 20 hours each week. In light of these very specific circumstances of the employment relationship, the Tribunal found that assisting customers was an essential duty of the store manager position.

The Tribunal then concluded that the duty to accommodate did not extend so far as to require the employer to accommodate the employee’s injury by allowing her (when working alone) to ask customers to return to the store when other staff would be available to assist them. That was the point of undue hardship.

The Tribunal confirmed for employers and employees in Ontario that while an employer can be required to rearrange an employee’s workplace in order to allow the employee to perform the essential duties of his or her job, the duty to accommodate does not require any of the following:

• Permanently assigning the essential duties of a position to other employees;
• Permanently changing the essential duties of a position; or
• Exempting employees from performing the essential duties of their position.

Takeaways from Decision

This decision confirms how far an employer has to go to potentially rearrange its operation to accommodate an employee.  If an employee’s perfect accommodation would effectively exempt them from performing the essential functions of their job, the point of undue hardship may have been reached.

It is important to keep in mind that every workplace is different.  What is unreasonable in one place of work may be reasonable in another.  So, the determination of undue hardship will always turn on the specific facts of each case.

So, the assessment can take some time and effort.  But the critical question that is always asked in this type of situation is whether the employee is able to perform the essential duties of their position in the foreseeable future.  For this employee, since she was going to be retrained for another job, the answer was “no”.  If the answer is “yes”, then the employer will have some more work to do.

If an employer finds themselves managing the accommodation process, reach out to Jonathan Borrelli and our employment law department and we can guide you through managing your team.