Employer must prove undue hardship not to accommodate
Most employers are aware that when an employee has an injury or a disability, the employer has to try to accommodate them. Many employers, however, even very large and presumably sophisticated ones, are misinformed about the extent of their obligation.
Let’s imagine that you run a factory that employs 75 non-unionized people. Tom has been working as a material handler for eight years. As a result of an injury to Tom’s shoulder, and it doesn’t matter whether it was at home or at work, he ends up with a permanent restriction on his ability to lift things over his shoulder. Unfortunately, Tom’s job involves lifting things above his shoulder on a regular basis. It is impossible to change the machinery and the plant layout to make it any other way. There is nothing you can reasonably do to change the job so that Tom can do it with his restrictions. At this point, many employers make the mistake of thinking that the story is over. Some of them send Tom a letter saying, “Sorry, but you can’t do your job, it’s not our fault, here’s your termination pay, good bye.”
Human rights law has evolved to the point that far more than this is required. The employer has an obligation to look around its plant and see what other jobs are available that Tom might do. Tom can drive a forklift, work in shipping and receiving, run a machine, clear the floors, lift below the shoulders and do a variety of other tasks. The only thing he can’t do is lift things over his shoulders. The employer, if it has an opening in one of these other areas, must put Tom in the job. In order to make room for Tom, it’s only if an opening exists that Tom gets the job. If that position pays less than Tom’s old job, then he gets paid less.
If the doctor’s note says, “Tom should avoid lifting any significant weight over his shoulders” and the employer has another position where only occasional lifting over the shoulders is required, it should ask the doctors more questions. The employer is expected to engage in due diligence. It’s not good enough for the employer to simply claim they thought the doctor meant never lift anything over his shoulder. If they need more clarity, they should ask for it and not use a lack of information as an excuse to end Tom’s employment. Perhaps if asked the doctor would say that Tom could occasionally lift things over his shoulders and put some weight restriction on that.
If there is nothing immediately available that Tom can do, the employer should consider simply sending Tom home and telling him that they are going to keep looking for a position for him. Nothing requires the employer to pay for this time off and it does not require the employer to create a position and have work done that they don’t need. If Tom is terminated or sent home and two weeks later the company hires a new forklift operator, Tom will have a valid complaint under the Ontario Human Rights Code. Even if the company were required to send Tom training to get his forklift operating certification, they would be expected to do so.
The Ontario Human Rights Code requires employers to accommodate the disability to the point of undue hardship. What is and is not undue hardship is different in every case. If Tom is your employees but you only have five employees, the Ontario Human Rights Tribunal will accept that you are far less flexibility. While they will still expect you to make sure that you have clearly understood the limitation involved, the analysis of whether there are any other jobs he can do for you is much more brief.
Although it has not happened yet, to any great extent, the next step in human rights cases will likely be an order for “bundling”. Sooner or later, some human rights adjudicator is going to tell a larger employer that even though there were no existing positions that Tom could do, they were big enough to have taken a bunch of jobs that would usually go to different people and bundle them into one job for Tom. It will not be a matter of ordering the employer to pay for work they don’t need, but rather ordering them to rearrange their task allocations to accommodate Tom.
Many reading this are fuming at the onerous and costly responsibilities increasingly heaped on employers. Others who have been dumped on the street by an employer as a result of a disability will be cheering inside. Whether one thinks all of this is fair or not, employers must be well informed. Human rights law expands and never shrinks. For employers, forewarned is forearmed.
As published in the Hamilton Spectator, September 6, 2010