In Re York County Hospital, the grievor, a nurse, was unable to return to her full nursing duties after suffering a work-related injury.
The employer wanted to place her in a part-time clerical position, but the grievor aspired to become an educator with the hospital, which would have required training.
The footnotes from Professor Lynk's article have been removed from this publication. The Employer's Duty to Accommodate The essence of the duty is simple to state: Employers in Canada are required to make every reasonable effort, short of an undue hardship, to find an accommodation for an employee with a disability.
Its outer boundaries, however, are much harder to determine.
But this much is clear to date: The duty requires more from the employer than simply investigating whether any existing job might be suitable for a disabled employee.
Rather, the employer is expected to determine whether other positions in the workplace are suitable for the employee or if existing positions can be adjusted, adapted or modified for the employee.
Recent cases have said that the employer's accommodation efforts must be "serious", "conscientious", and it must demonstrate its "best efforts".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.In Re Greater Niagara General Hospital, the arbitration board ordered the employer to re-examine existing positions in a nursing unit to determine if they could be re-structured into a new "bundle of duties" that would allow the grievor, a nurse, to work within the limitations of her permanent back injury.The arbitration board ruled for the union, deciding that the clerical position was not the only available accommodation possible for the employee: "We accept that the grievor received very little, if any, training.In retrospect, and in view of the grievor's present career goals, it would have been prudent for the employer to have arranged for training in the education department." Arbitrator Richard Brown, in Re Mount Sinai Hospital, has laid out the governing principles of the employer's duty to accommodate.