In its award, the board said it is not sufficient for the employer to show that its employee could not perform any of the current job descriptions.It must also be able to show that the job descriptions cannot be altered without undue hardship: "The duty to accommodate requires more than determining that an employee cannot perform existing jobs.The results of this comparison will vary from case to case.
Consistent with the Supreme Court of Canada's direction in O'Malley, Central Alberta Dairy Pool, and Renaud, the initial burden is upon the employer to reasonably accommodate the employee's mental or physical disability.
To prove that its accommodation efforts were serious and conscientious, an employer by law is required to engage in a three step process: First, determine if the employee can perform his or her existing job as it is.
In Calgary District Hospital Group, a nurse with a back-related injury was preparing to return to work.
Her back injury had left her unable to perform several key aspects of her regular position, including the lifting and transferring of patients.
Whether accommodation would amount to undue hardship entails a spectrum of considerations, including, but not limited to: (i) financial cost, (ii) disruption of a collective agreement, (iii) problems of morale of other employees, (iv) the interchangeability of the workforce and facilities, (v) safety, and (vi) the size of the operations.
The costs of accommodation should be compared with the resulting benefits in deciding whether the hardship caused by accommodation is "undue".
In any permanent accommodation circumstance, an employee has to be able to perform the essential job duties of the existing or re-structured or newly-assigned position.
This was illustrated in the recent decision of the Federal Court of Appeal (FCA) in Holmes v. A pay clerk working for the federal government developed severe numbness and pain in her right shoulder, making it difficult to perform her duties.
That is, the hospital was required to determine if those lighter duties performed by all nurses in the unit could be re-assembled into a specific light-duty position for the grievor. The employee, a quality control inspector who worked with acids and caustics, suffered from severe epileptic seizures. With the available medical evidence indicating that future severe seizures were unavoidable, the employer terminated the employee for safety reasons.